DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

V ISAKHAPATNAM, A.P., INDIA

PROJECT TITLE

TRANSFER OF TITTLE

SUBJECT
CONTRACTS-II

NAME OF THE FACULTY

Mr.P.Jogi Naidu

Name of the Candidate: B. Yeswanth Naik

ROLL NO: 18LLB018
SEMESTER: III
SECTION-A
ACKNOWLEDGMENT

I would like to express my special thanks of gratitude to my teacher Mr.P.Jogi Naidu who
gave me the golden opportunity to do this wonderful project on the topic which also helped
me in doing a lot of Research and I came to know about so many new things. I am thankful
for that.

Secondly, I would also like to thank my friends who helped me a lot in finalizing this project
within the limited time frame.
Contents:

SECTIONS UNDER TRNSFER OF TITTLE:

27. Sale by a person not the owner

[s 27.1] Sale by person not the owner—General rule.—

[s 27.2] Title by estoppel: Estoppel of owner.—

[s 27.3] Exceptions to the general rule.—

[s 27.4] Sale by mercantile agent.—

[s 27.5] Mercantile agent.—

[s 27.6] Possession by mercantile agent.—

[s 27.7] Possession must be with consent.—

[s 27.8] Sale must have been made when acting in the ordinary course of business of a
mercantile agent.—

[s 27.11] Indian Contract Act, 1872, section 108.—

[s 27.12] Sale in market overt.—

FACTS:

CASE HISTORY:

ARRGUMENTS RAISED ON BOTH SIDES

JUDGEMENT:

S. 28. Sale by one of joint owners.

[s 28.1] Sale by a co-owner.—

FACTS:

CASE HISTORY

ARGUMENTS ON BOTH SIDES:

JUDGEMENT:
S. 29. Sale by person in possession under voidable contract:

[s 29.1] Sale by person in possession under voidable contract.—

[s 29.2] “In good faith”.—

[s 29.3] Without notice of the seller’s defect of title.—

S. 30. Seller or buyer in possession after sale.-

[s 30.1] Disposition by seller remaining in possession.—

[s 30.2] Disposition by buyer obtaining possession.—

[s 30.3] Chain of contracts.—

[s 30.4] Hire-purchase agreements.—

[s 30.5] Mercantile agent.—

[s 30.6] Documents of title to goods.—

[s 30.7] Or other disposition.—

BIBILIOGRAPHY:
ABSTRACT:

A Latin maxim says: ‘Nemo dat quod non habet’ which means that no one can give what he
doesn’t have. This is the ground principle regarding the transfer of title. Sections 27 to 30 of
the Sale of Goods Act, 1930 specify these laws about the transfer of title.

27. Sale by a person not the owner:

28. Sale By One Of Joint Owners

29. Sale by person in possession under voidable contract

30. Seller or buyer in possession after sale

SECTIONS UNDER TRNSFER OF TITTLE:

Now we discuss about each section in detail with case laws

27. Sale by a person not the owner:

Subject to the provisions of this Act and of any other law for the time being in force, where
goods are sold by a person who is not the owner thereof and who does not sell them under the
authority or with the consent of the owner, the buyer acquires no better title to the goods
than the seller had, unless the owner of the goods is by his conduct precluded from denying
the seller’s authority to sell: Provided that, where a mercantile agent is, with the consent of
the owner, in possession of the goods or of a document of title to the goods, any sale made
by him, when acting in the ordinary course of business of a mercantile agent, shall be as
valid as if he were expressly authorised by the owner of the goods to make the same;
provided that the buyer acts in good faith and has not at the time of the contract of sale notice
that the seller has no authority to sell.

The section may be illustrated by the following examples:

(1) A finds a ring and after making reasonable efforts to discover the owner, sells it to B, who
buys without knowledge that A was merely a finder. The true owner may recover the ring
from B.1
(2) Delivery by A of goods on sale or return to B, upon the condition that they are to remain

1
Farquharson Bros. v King & Co, (1902) AC 325 at 335, 336.
the property of A until paid for. B sells them to C, without paying A for them. C buys in good
faith and without notice of A’s title. A can recover the goods or their value from C.2

(3) Sale of a horse at a public auction. Unknown to the auctioneer and the buyer, the horse
had been stolen. The buyer obtains no title against the true owner.3

(4) The owner of a motor bus engaged A to ply his bus for hire. The owner handed a letter to
A to be delivered to the magistrate so as to obtain a permit for hiring the bus. A fraudulently
altered the letter into one addressed to the district superintendent of police requesting him
transfer the registration to his (A’s) name, and after this was done he sold the bus to a
stranger. The buyer does not obtain any title against the true owner.4

(5) A sold goods to the plaintiff, but was allowed to keep possession of them upon payment
of a weekly rent, and an undertaking to deliver them up on demand. He subsequently sold
them to the defendant. He thereby determined the bailment of the goods to him, and the
defendant, though he bought in good faith, acquired no title against the plaintiff.5

s 27.1] Sale by person not the owner—General rule.—

As a general rule, no man can sell goods and give a good title to them unless he is the owner,
or someone having his authority or consent, e.g., an agent. And the rule is the same, although
the sale is accompanied by a transfer of a bill of lading, delivery order, warrant, or similar
documents. Such documents are not negotiable instruments so as by their transfer to pass to
the buyer a title superior to that of the seller. A person, therefore, however innocent, who
buys goods from one not the owner obtains no property in them whatsoever. 6The general rule
of law, as stated by Wilies, J, is that “no one can transfer a better title than he himself
possesses.”

This is expressed by the maxim nemo dot quod non habet.7

2
Edwards v Vaughan, (1910) 26 TLR 545 (CA).

3
Helby v Matthews, (1895) AC 471; Belsize Motor Supply Co v Cox, (1914) 1 KB 244.
4
Cundy v Lindsay, (1878) 3 App Cas 459.
.
5
lkes v King, (1923) 1 KB 282 : (1922) All ER Rep 658
6
Anthone Gordon Guest (ed), Benjamin’s Sale of Goods, 6th Edn, Sweet & Maxwell, 2003, p 11.
7
lkes v King, (1923) 1 KB 282 : (1922) All ER Rep 658.
In the development of law, the legislature had to find a balance between two principles. The
first one relates to protecting one’s own property. In order to protect the owner’s property so
that the owner alone can pass title, the first para of this section has been enacted so that a
person not an owner cannot pass any title. However, in the interest of trade and commerce
and its development, it was necessary to permit sales by authorised agents. This is secured by
the proviso to this section whereby sales by commercial agents are protected. Sections 28, 29,
30(1), (2) fall in the second category.

[s 27.2] Title by estoppel: Estoppel of owner.—

But though the general rule is as stated above, the owner may be estopped by his conduct
from denying the seller’s title and setting up his title against the buyer. The words “unless the
owner of the goods is by his conduct precluded from denying the seller’s authority to sell”
refer to estoppel of the owner. The said words carve out an exception to the general rule. The
estoppel may arise by words or conduct which wilfully causes another to alter his position
and to induce him to act on that belief or stands by negligently or culpably and allows another
to contract on the faith and understanding as if the seller has the authority to sell, or is the
owner or has apparent title to the goods. Negligence on the part of the owner, in order to
constitute conduct precluding him from denying the seller’s authority to sell, must be more
than mere negligence in the management of his own affairs and must amount to a disregard of
his obligations towards the buyer.8

In Mercantile Bank v Central Bank, 80 the Respondent Central Bank advanced monies to a
merchant, on the pledge of railway receipt. The bank instead of sending railway receipt to its
own godown keeper to enable him to obtain goods was accustomed in the usual course of
business to hand railway receipt back to a merchant for the specific purpose of clearing the
goods and storing them in bank’s godown. A merchant, instead of doing so, repledged the
receipts with the Appellant bank. On merchant’s failure, a question of priority arose between
these two banks with regard to pledged railway receipts with these two banks. An estoppel by
conduct or neglect was sought to be raised against the Respondent, Central Bank, but the
Privy Council rejected it on the ground that Respondent, Central Bank, owed no duty to
Appellant, Mercantile Bank, in the matter as there was no relationship of the contract or
agency between them. Lastly, the Appellant bank argued that there was estoppel as railway
receipt contained a representation by Respondent to any person to whom merchant might

8
Anthone Gordon Guest (ed), Benjamin’s Sale of Goods, 6th Edn, Sweet & Maxwell, 2003, p 11.
produce it, that the merchant had the power to obtain a pledge on security of goods. Thus the
argument ran that apart from the question of negligence of the respondent, there was a
representation of authority which bound the Respondent because it enabled merchant to
mislead Appellant. The Privy Council refused to accede to the argument and observed that
estoppel by representation did not exist in the case inasmuch as the railway receipt was in
form merely authority to take delivery of goods and there was no ground for finding any
representation as was argued by the appellant. Possession of railway receipt, like possession
of goods, did not convey a representation that merchants were entitled to dispose of property.
The Privy Council accepted that estoppel by holding out or representation may arise if a share
certificate with transfer form in blank has been placed with share broker. Brokers in ordinary
course of business are employed to sell, buy and to raise money upon security of the
customer. Accordingly, it was reasonable assumption that broker had full authority to deal
with the securities. But the railway receipt was in form merely an authority to take delivery of
the goods and possession of such documents contained no representation that holder had any
implied authority or right to dispose of the goods. It was at best an ambiguous document.

In Mohambaram v Ram Narayan9 an owner of bus engaged A as his agent to ply the bus for
hire and left a duly signed letter addressed to District Magistrate requesting to grant “G”
permit to “A”. The registration certificate of the bus was also left with A. A fraudulently
altered the letter into one addressed to DSP requesting him to transfer the registration in his
(A’s) name, which having been done, A sold the bus to a stranger who was ignorant about
A’s real title. The owner, challenged the buyer’s title. It was held that the owner could not
have contemplated the possibility of fraud of A and that true owner was not precluded under
section 27 of the Sale of Goods Act, 1930 from challenging the title acquired by the buyer.10

[s 27.3] Exceptions to the general rule.—

The following are the exceptions to the rule that no seller of goods can give to the buyer
thereof a better title

than his own, namely,—

(1) Where person without title selling the goods with consent or authority of the owner
(section 27).

9
Whistler v Forster, (1863) 4 CB (NS) 248 : 143 ER 441 : 32 LJCP pp 161, 164.

10
Heap v Motorists Advisory Agency, Ltd, (1923) 1 KB 577.
(2) Where an Owner of goods is precluded by his conduct to deny the seller’s authority to sell

(3) Sale by a mercantile agent (proviso to section 27).

(4) Sale by one of the joint owners (section 28).

(5) Sale by a person in possession under a voidable contract (section 29).

(6) Sale by one who has already sold the goods but continues in possession thereof [section
30(1)].

(7) Sale by buyer obtaining possession before the property in the goods has vested in him
[section 30(2)].

(8) Where an unpaid seller resells the goods when he has exercised his right of lien or
stoppage in transit

(section 54).

All these exceptions are necessary for the protection of persons who deal bona fide for value
without notice and

person dealing with mercantile agents.

The words “subject to the provisions of this Act and of any other law for the time being in
force” are wide enough to provide further exceptions as under:—

(1) Sale by a pawner under his power of sale (see section 176 of Indian Contract Act, 1872).

(2) Sale by a Court Receiver under his powers under O 40 of Civil Procedure Code, 1908.

(3) Sale by Official Assignee under the Insolvency Law or by Liquidators under the Indian
Companies Act,

1956.

(4) Sale by a mortgagor in possession to a buyer without notice of encumbrance.

(5) Sale by a finder of goods pursuant to the provisions of section 169 of the Indian Contract
Act, 1872.

(6) Sale by a master of the ship in case of necessity.

[s 27.4] Sale by mercantile agent.—

Mere possession of goods or of the documents of title to goods gives no power to dispose of
them. Thus a clerk in a merchant’s office who as such is possessed of delivery orders or other
documents of title for the purposes of his employment has no power to dispose of them. But it
is different when the person in possession of goods is a mercantile agent, such as a factor,
broker or auctioneer. Lord Wright in Lowther v Harris, 83 observed that a mere shopkeeper
or servant cannot be a mercantile agent. A person who has his own shop and gives receipts
and takes cheque in his own registered business name and earns commission is not a mere
servant but agent even if his discretionary authority is limited. A mercantile agent may act for
only one principal and may not have general occupation as agent. Persons who deal in picture
and object of art on commission can be mercantile agent. A sale by such a person of goods or
the documents of title to goods will pass a good title to the buyer—

(1) if he is in possession of the goods or of the documents with the consent of the owner;

(2) if the sale is made by him when acting in the ordinary course of business of a mercantile
agent;

(3) If the buyer acts in good faith and has not at the time the contract of sale notice that the
seller has no authority to sell. The proviso to the section is a reproduction of section 2(1) of
the Factors Act (English), 1889. It is founded on the principle that where a person has
entrusted goods or the documents of title to goods to an agent who, in the course of such
agency, sells or pledges the goods, he ought, as regards innocent third parties, to be treated as
the owner of the goods. This is the principle running through the earlier Factors Acts of 1823,
1825, 1842 and 1877, all of which have been repealed by the Factors Act of 1889. It is a
departure from the common law rule that mere possession of goods or of the documents of
title to goods does not enable the person in possession to dispose of them in contravention of
his instructions in respect of them. The present section deals with the sale of goods by a
mercantile agent. Section 178 of the Indian Contract Act, 1872, as amended by the Indian
Contract (Amendment) Act, 1930, deals with the pledge of goods by a mercantile agent.

[s 27.5] Mercantile agent.—

The proviso to the section validates a sale by a mercantile agent. A mercantile agent is one
who has, in the customary course of his 84 business as such agent, authority either to sell
goods, or to consign goods for the
purposes of sale, or to buy goods, or to raise money on the security of goods [section 2(9) of
the Sale of Goods Act, 1930]. A person having authority to consign goods is called a
forwarding agent.

The term “mercantile agent” does not include a mere servant or caretaker, or one who has
possession of goods for carriage, safe custody, or otherwise as an independent contracting
party. It only includes persons whose employment corresponds to that of some known kind of
commercial agent, e.g., a factor, an auctioneer or a broker. 85 A broker is an agent to make
contracts between other persons in matters of trade or commerce. A mercantile agency under
this section may exist although the agent is acting for one principal only and has no general
occupation as agent. The section does not require a general occupation as agent. 86

To constitute an agent he must be (1) a mercantile agent (2) having the customary course of
his business as such agent authority to sell goods, etc. A mere insurance agent who on a
particular occasion is entrusted with pictures to sell on commission is not a mercantile agent.
It cannot be said of one who is merely an insurance agent that he has “in the customary
course of his business as such agent authority,” etc. A pledge therefore of the pictures given
to him for sale would not be valid.

The definition of the terms “goods” in section 2(7) shows that the section under consideration
is not confined to dealing in merchandise, but also includes sales of furniture, etc.

[s 27.6] Possession by mercantile agent.—

The mercantile agent must have possession of the goods or of document of title to the goods
in his capacity as mercantile agent and not in other capacity. So where a warehouseman who
was also a broker had the goods qua warehouseman, it was held that he could not validly
pledge the goods received by him in his capacity as a warehouseman. 87 Mercantile agent is
in possession of goods even if he obtains possession of goods by his fraud. So in Lowther v
Harris, 88 where mercantile agent was allowed to take certain tapestry away in van after the
real owner (plaintiff) had sanctioned the sale of the goods to the buyer, it was held that a
mercantile agent was in possession of the goods though he (mercantile agent) never intended
sale to be made to that buyer as he had just obtained by fraud possession of the goods from
the real owner to pawn it with a pledgee. But mercantile agent is not in possession of the
goods when he had stolen the goods from the real owner (plaintiff) who never parted with it.

[s 27.7] Possession must be with consent.—

To validate a sale by a mercantile agent under this section he must be in possession of the
goods or of the documents of title to the goods with the consent of the owner. This implies
that he must have been entrusted with the goods, as a mercantile agent and not in any other
capacity, in other words, the capacity in which the agent receives the goods must be one
which clothes him with authority to sell or pledge the goods. Thus if a house is let furnished
to a person who happens to be an auctioneer, it is let to him as a tenant and not as an
auctioneer. He cannot therefore sell the furniture by auction and give a good title to the buyer.
The consent contemplated by this section is consent in fact. If the goods or documents are
obtained by theft there is no consent. 89 Similarly there is no consent if the goods or
documents are obtained by what is equivalent to theft, as where A falsely pretending that he
is B receives goods or documents from the owner. But it is different if the buyer, who is also
the mercantile agent, has received the bill of lading directly from the seller together with the
invoice and bill of exchange. It may be held that the buyer received the bill of lading with the
consent of the owner11

[s 27.8] Sale must have been made when acting in the ordinary course of business of a
mercantile agent.—

It is not sufficient that the sale is made by a “mercantile agent,” i.e., a mercantile agent
having in the ordinary course of his business as such agent authority to sell or pledge the
goods [section 2(9) of Sale of Goods Act, 1930]. The sale must also have been made by him
when acting in the ordinary course of business of a mercantile agent. In other words, the
seller must occupy the character of a mercantile agent as defined in section 2(9) of Sale of
Goods Act, 1930 and, further, he must act within business hours, at a proper place of
business, and in other respects in the ordinary way in which a mercantile agent would act, so
that there is nothing to lead the buyer or pledgee to suppose that anything wrong is being
done, or to give him notice that the sale or pledge is one which he has no authority to
make.12So where a mercantile agent employed a friend of his to pledge the goods for him, it
was held not to be in the ordinary course of business of a mercantile agent, and the pledge
13
was held to be invalid. The matter may be put in another form. If a mercantile agent has

11
Mercantile Bank v Central Bank, AIR 1938 PC 52 : (1938) 47 LW 329.
.
12
Mohambaram v Ram Narayan, AIR 1935 Mad 850 : (1935) 69 Mad LJ 691
13
Woodley v Coventry, (1863) 2 H&C 64 : 32 LJ Ex 185 : (1863) 159 ER 68.
express authority to sell, and he sells, no difficulty arises. The case then falls within the first
part of the section. The difficulty arises when he has no authority to sell and he sells the
goods in contravention of his instructions, for instance, where he has authority only to pledge,
but he fraudulently sells. In such a case the section applies and protects the innocent buyer, if
the agent has acted “in the ordinary course of business of a mercantile agent.”

In dealing with third person the section gives him authority if he acts “in the ordinary course
of business of a mercantile agent,” i.e., an ostensible authority. This authority cannot be cut
down by private instructions or by a particular trade custom, except that the existence of a
notorious trade custom would fix the buyer or the pledgee from the agent with notice of a
restricted authority to deal with the goods and thus bring the case within the last part of the
section. 93 s 27.10] Subject to the provisions of any other law for the time being in force.—

The section preserves the powers of sale conferred by other acts. Thus if the pawnor makes
default in payment of the debt at the stipulated time, the pawnee may sell the goods pledged
and may give a good title to the buyer, though he was only a special property in the goods as
distinguished from the general property which a mortgagee has in the goods mortgaged to
him. 101 See note to section 4 above, “Mortgage, pledge and hypothecation of goods.”

[s 27.11] Indian Contract Act, 1872, section 108.—

This section now takes the place of section 108, Exception I of the Indian Contract Act, 1872.
By that Exception it was provided that when any person was, by the consent of the owner, in
possession of any goods or of the documents of title to the goods, he could transfer the
ownership of the goods or documents, and give such person a good title thereto
notwithstanding any instructions to the contrary: provided that the buyer acted in good faith
and under circumstances which were not such as to raise a reasonable presumption that the
person in possession of the goods or documents had no right to sell goods. The language of
that section was very wide, the words of the section being “any person in possession” of the
goods or of the documents of title of goods. The courts, however, endeavoured to keep the
results within tolerable bounds by putting a strict construction on the words “possession,” and
interpreting it to mean juridical possession as distinguished from mere physical possession or
custody. It was accordingly held that a sale of buffaloes by a person with whom they were
left by the owner to take care of during his absence does not pass a good title to the buyer.
102 Similarly where a piano had been hired from the plaintiff with an option of purchase, and
the hirer sold the piano to the defendant before he had exercised that option, it was held that
the defendant was liable in trover to the plaintiff, although it was found that he acted in good
faith. 103 These cases would be decided the same way, the first on the ground that a bailee
for safe custody is not a mercantile agent, and the second on the ground that the hirer of
goods under a hire-purchase agreement with an option to purchase cannot sell them so as to
give a good title to the buyer under section 30(2) below. He can do so only if he is under a
binding agreement to buy them, for then he has “agreed to buy goods” within the meaning of
that section. 104 Under the Sale of Goods Act, 1930, a sale by a person who is not the owner,
nor is authorised by the owner to sell is not valid unless the case falls within one of the four
sections, namely, section 27, section 28, section 29 and section 30. The capacity to give a
good title to a bona fide buyer is confined to the classes of persons, mentioned in those
sections.

[s 27.12] Sale in market overt.—

The exceptions to the rule that a person cannot make a valid sale of goods which do not
belong to him have already been enumerated in the note “Exceptions to the general rule,”
above. In England, there is an additional exception in the case of sales in market overt. Where
goods are sold in market overt, according to the usage of the market, the buyer acquires a
good title to the goods, provided he buys them in good faith and without notice of any defect
or want of title on the part of the seller. 105 Market overt is an open, public and legally
constituted market. In the city of London every shop in which goods are openly sold is
market overt, for such goods as the owner openly professes to trade in. In the country the
only place that is market overt is the particular spot of ground set apart by custom for the sale
of particular goods, and this does not include shop. 106 The result is that where goods
obtained by theft are sold in market overt, the property in the goods passes to the buyer.
There is no such provision in the Indian law. According to the Indian law a thief cannot give
a good title to a purchaser from him of goods which he has stolen, however innocent the
purchaser may be of any knowledge of the theft. It may be interesting to note that in the
Contract Bill as drafted by the Law Commissioners it was provided in effect that a purchaser
acting in good faith, and in the absence of suspicious circumstances, might acquire a good
title from any person in possession of goods, in other words, that every place in India should
be a market overt. The Select Committee to which the Bill was referred objected to this
clause, the ground of objection being substantially that the provision would make British
India an asylum for cattle stealers from the native States.
The clause, after a good deal of controversy, was ultimately moulded in a different form and
it appeared as section 108 in the Indian Contract Act, 1872. In England also the law of market
overt has so many exceptions grafted on it that it has long ceased to be of any general
importance. 107 In fact the Select Committee in the Commons, to which the Sale of Goods
Bill (English) was referred, decided for the abolition of the rule of sale in market overt, but
the rule was restored in Committee of the whole House, and it is now contained in section 22
of the English Sale of Goods Act, 1893

For the section 27 these case substantiates the

1.Kannambra Nayar Veettil Valia vs. P.N. Krishna Pattar And Ors.on 2 April, 1942

FACTS:

1. The question, raised in. this appeal is whether there can be a valid pledge of shares by the
deposit of the share certificate when it is not accompanied by an instrument of transfer. The
appellant instituted a suit in the Court of the District Munsif of Palghat to recover what was
due on a promissory note executed by one Subramania Pattar in favour of one Ramakrishna
Pattar, the instrument having been endorsed to the appellant. When the appellant demanded
the amount due under the promissory note, the maker deposited with, him as security for
payment a. share certificate in respect of shares held by him in the Parli Tile Works, Limited.
The certificate was not accompanied by a deed transferring the shares to the appellant, but he
claims that notwithstanding this there was a valid pledge of the shares. The suit was contested
by the fourth defendant, who is the first respondent in this appeal. On a date subsequent to the
deposit of the share certificate with the appellant the first respondent attached the shares by a
prohibitory order issued under Order 21, Rule 46 of the Code of Civil Procedure. He denied
that a valid pledge of the shares was created in favour of the appellant and maintained that he
himself had obtained title to the shares by reason of the attachment and subsequent sale.

CASE HISTORY:

2. The District Munsif held that a valid pledge had not been created, but on appeal the
Subordinate Judge of South Malabar reversed the District Munsif's decision. In his opinion, a
valid pledge had been created by the deposit of the share certificate. The first respondent
appealed to this Court. The appeal was heard by Venkataramana Rao, J., who agreed with the
District Munsif and accordingly allowed the appeal. This appeal is from the judgment of
Venkataramana Rao, J., under clause 15 of the Letters Patent.
ARRGUMENTS RAISED ON BOTH SIDES

3. In the opinion of Venkataramana Rao, J., 'shares' are not 'goods' within the meaning of
Section 172 of the Indian Contract Act and there can be no valid security unless the scrip is
accompanied by an instrument of transfer. When a share certificate is handed over by way of
security to another with a deed of transfer duly executed, the transaction constitutes more
than a pledge, because there is a transfer of the holder's rights in the property, subject of
course to the right of redemption. We shall return to the meaning of 'pledge' in a moment.
The learned Judge recognised that according to the English law the mere deposit of a share
certificate by way of security is treated as an equitable mortgage, but in his opinion that did
not help the appellant, because the deposit had not been made in the City of Madras. He
regarded an equitable mortgage of movable property as being on the same basis as an
equitable mortgage of immovable property and therefore an equitable mortgage of movable
property could not be effected outside the towns specified in the Transfer of Property Act. It
is not necessary for the Court to discuss this question because Mr. Kuttikrishna Menon, on
behalf of the appellant, has been content to confine his case to the plea of pledge.

4. Now let us see what is implied by the expression 'pledge'. In Hallday v. Holgate14
(1868)L.R. 3 Exeh. Cases 299, Willes, J., placed a pledge between a simple lien and a
mortgage. He pointed out that in the case of a lien there is no transfer of interest, but in the
case of a mortgage the property passes. In the case of a pledge a deposit of goods is made
security for a debt and the right to the property vests in the pledgee so far as it is necessary to
secure the debt. Section 148 of the Indian Contract Act defines bailment as the delivery of
goods by one person to another for some purpose upon a contract that they shall, when the
purpose is accomplished, be returned or otherwise disposed of according to the directions of
the person delivering them. Section 172 defines a pledge as the bailment of goods as security
for the payment of a debt or the performance of an obligation. Section 176 provides that, if
the pawnor makes default in payment of the debt, or performance of the contract at the
stipulated time, the pawnee may bring a suit against the pawnor upon the debt or promise,
and retain the goods pledged as collateral security; or he may sell them, on giving the pawnor
reasonable notice of the sale. Therefore under Indian law as under English law a pledge is
created by the delivery of goods as security.

14
Hallday v. Holgate (1868) L.R. 3 Exeh. Cases 299,
5. In England a share is regarded as a chose in action. See Harrold v. Plenty (1901) 2 Ch. 314.
In India a share is not a chose in action. Section 137 of the Transfer of Property Act says that
nothing in Chapter VIII (which deals with transfers of actionable claims) applies to stocks
and shares, and Section 28 of the Indian Companies Act states that shares constitute movable
property. Section 2 (7) of the Sale of Goods Act, 1930, expressly includes shares in the
definition given there of 'goods'. Before the passing of the Sale of Goods Act, 1930, sales of
goods were regulated by the sections comprised in Chapter VII of the Contract Act, but the
Sale of Goods Act repealed the whole of the chapter. Section 72 (one of the repealed
sections) denned 'goods' as meaning every kind of movable property; and as shares are
movable property, they were goods within the meaning of that section.

6. When the Sale of Goods Act was placed on the statute book Section 178 of the Contract
Act was amended. Before the amendment the section read as follows:

A person who is in possession of any goods, or of any bill of lading, dock-warrant,

warehouse-keeper's certificate, wharfinger's certificate, or warrant or order for delivery, or
any other document of title to goods, may make a valid pledge of such goods or documents.:
Provided that the pawnee acts in good faith, and under circumstances which are not such as to
raise a reasonable presumption that the pawnor is acting improperly: Provided also that such
goods or documents have not been obtained from their lawful owner, or from any person in
lawful custody of them, by means of an offence or fraud.

7. As a result of the amendment the expressions "mercantile agent" and "documents of title"
are given the meaning assigned to them in the Sale of Goods Act. Section 1 (4) of that Act
says:

Document of title to goods' includes a bill of lading, dock-warrant, warehouse-keeper's

certificate, wharfinger's certificate, railway receipt, warrant or order for the delivery of goods
and any other document used in the ordinary course of business as proof of the possession or
control of goods, or authorizing or purporting to authorize, either by endorsement or by
delivery, the possessor of the document to transfer or receive goods thereby represented.

The Court has not been asked to say that a share certificate comes within this definition, and
we will assume that it does not.

8. In Lalit v. Haridas (1916) 24 C.L.J. 335 the Calcutta High Court held that share certificates
are neither goods nor documents of title within the meaning of Section 178 of the Contract
Act, but this decision was given before the enactment of the Sale of Goods Act and,
therefore, before the amendment of the Contract Act. On the other hand, the Bombay High
Court, long before 1930, held that the term 'goods' used in Section 178 of the Contract Act
includes shares in joint stock companies and consequently recognised that there could be a
valid pledge of shares. See B. D. Sethna v. National Bank (1910) 12 Bom.L.R. 870, Fazal v.
Mangaldas (1921) 46 Bom. 489 and Jamshedji v. Maganlal (1925) 27 Bom.L.R. 514. It
seems to us that even before the passing of the Sale of Goods Act the Bombay opinion was
preferable to the Calcutta opinion, but as the result of the passing of the Sale of Goods Act
and the amendment of the Contract Act we consider that the Bombay opinion is not open to
dispute. We can see no valid reason for giving the word 'goods' a different meaning in the
Contract Act from the meaning which it has in the Sale of Goods Act.

JUDGEMENT:

9. We now come to the question whether a pledge of shares can be created by the mere
deposit of the share certificate. A share is not a tangible thing. It is a share in the share capital
of the company and is so denned in Section 2 (16) of the Indian Companies Act.
Consequently it is necessary for a company to issue 'to a shareholder a certificate showing the
number of shares which he holds. As shares are goods and therefore pledgeable, they can
only be pledged by the deposit of the share certificate. It appears to us that by including
shares in the definition of goods in the Sale of Goods Act the Legislature must have
associated shares with the share certificate which is marketable. Otherwise, it is difficult to
see how shares can be goods and the subject of pledge, the essence of which is delivery. To
say that there can only be a pledge of shares when the share certificate is accompanied by a
deed of transfer is making the transaction something more than a pledge, as we have already
pointed out. We think that when a person delivers a share certificate to another to be held by
him as security, there is under the law of India a pledge which he can enforce, but unless the
pledgee at the time of the deposit secures a deed of transfer which he can use in case of
necessity or obtains one from his debtor at a later stage, he must have recourse to the Court
when he wishes to enforce his security. There is nothing to prevent a pledgee suing on the
debt and asking the Court to sell the goods for him. If the goods happen to be shares, the
Court can confer a full title on the buyer by following the procedure laid down in Order 21,
Rule 80 of the Code of Civil Procedure.

S. 28. Sale by one of joint owners.

If one of several joint owners of goods has the sole possession of them by permission of the
co-owners, the

property in the goods is transferred to any person who buys them of such joint owner in good
faith and has not

at the time of the contract of sale notice that the seller has no authority to sell.

[s 28.1] Sale by a co-owner.—

Ordinarily a co-owner could transfer his share only and hence this section enables a co-owner
to sell not only his own share but also of his other co-owners. This section lays down three
conditions for validating a sale by one of the co-owners, i.e.,

(i) he must be in sole possession by permission of his co-owners;

(ii) the purchaser acts in good faith, i.e., with honesty; and

(iii) the purchaser had no notice at the time of the contract of sale that the seller had no
authority to sell. This is the fourth exception of the rule that a man cannot make a valid sale
of goods which do not belong to him. It is a reproduction of Exception 2 to section 108 of the
Indian Contract Act, 1872. A, B and C own certain cattle in common. A is left by B and C in
possession of a cow which he sells to D. D purchases bona fide. The property in the cow is
transferred to D. This section has been applied to a joint Hindu family.15

JAMES CUNDY AND T. BEVINGTON AND THOMAS LINDSAY AND OTHERS.

1878)3 App.Cas. 459

FACTS:

The purchaser of a chattel takes it, as a general rule, subject to what may turn out to be
informalities in the title. By a purchase in market overt the title obtained is good against all
the world. If not so purchased, though purchased bonâ fide, the title obtained may not be
good against the real owner. Where the original owner has parted with the chattel to A. upon
a de facto contract, though there may be circumstances which enable that owner to set aside
that contract, the bonâ fide purchaser from A. will obtain an indefeasible title.

The question, therefore, in many such cases will be, was there a contract between the original
owner and the intermediate person. L. was a manufacturer in Ireland; Alfred Blenkarn, who

15
Taruck Chunder v Jodeshur, (1873) 11 Beng LR 193.
occupied a room in a house looking into Wood Street, Cheapside, wrote to L., proposing a
considerable purchase of L.'s goods, and in his letter used this address - "37, Wood Street,
Cheapside," and signed the letters (without any initial for a christian name) with a name so
written that it appeared to be "Blenkiron & Co." There was a respectable firm of that name,
"W. Blenkiron & Co," carrying on business at 123, Wood Street. L. sent letters, and
afterwards supplied goods, the letters, the goods, and the invoices accompanying the goods,
being all addressed to "Messrs. Blenkiron & Co., 37, Wood Street." The goods were received
by Blenkarn at that place, and disposed of to the Defendants, who were entirely ignorant of
the fraud:-

CASE HISTORY

APPEAL from a decision of the Court of Appeal, which had reversed a previous decision of
the Queen's Bench.In 1873, one Alfred Blenkarn hired a room at a corner house in Wood
Street, Cheapside - it had two side windowsnow Respondents, Messrs. Lindsay & Co., were
linen manufacturers, carrying on business at Belfast. In the latter part of 1873, Blenkarn
wrote to the Plaintiffs on the subject of a purchase from them of goods of their manufacture -
chiefly cambric handkerchiefs. His letters were written as from "37, Wood Street,
Cheapside," where he pretended to have a warehouse, but in fact occupied only a room on the
top floor, and that room, though looking into Wood Street on one side, could only be reached
from the entrance in 5, Little Love Lane. The name signed to these letters was always signed
without any initial as representing a Christian name, and was, besides, so written as to appear

"Blenkiron & Co." There was a highly respectable firm of W. Blenkiron & Son, carrying on
business in Wood Street - but at number 123, Wood Street, and not at 37. Messrs. Lindsay,
who knew the respectability of Blenkiron & Son, though not the number of the house where
they carried on business, answered the letters, and sent the goods addressed to "Messrs.
Blenkiron & Co., 37, Wood Street, Cheapside," where they were taken in at once. The
invoices sent with the goods were always addressed in the same way. Blenkarn sold the
goods, thus fraudulently obtained from Messrs. Lindsay, to different persons, and among the
rest he sold 250 dozen of cambric handkerchiefs to the Messrs. Cundy, who were bonâ fide
purchasers, and who resold them in the ordinary way of their trade. Payment not being made,
an action was commenced in the Mayor's Court of London by Messrs. Lindsay, the junior
partner of which firm, Mr. Thompson, made the ordinary affidavit of debt, as against Alfred
Blenkarn, and therein named Alfred Blenkarn as the debtor. Blenkarn's fraud was soon
discovered, and he was Prosecuted at the Central Criminal Court, and convicted and
sentenced. Messrs. Lindsay then brought an action against Messrs. Cundy as for unlawful
conversion of the handkerchiefs. The cause was tried before Mr. Justice

Blackburn, who left it to the jury to consider whether Alfred Blenkarn, with a fraudulent
intent to induce the Plaintiffs to give him the credit belonging to the good character of
Blenkiron & Co., wrote the letters, and by fraud induced the Plaintiffs to send the goods to
37, Wood Street - were they the same goods as those bought by the Defendants - and did the
Plaintiffs by the affidavit of debt intend, as a matter of fact, to adopt Alfred Blenkarn as their
debtor. The first and second questions were answered in the affirmative, and the third in the
negative. A verdict was taken for the Defendants, with leave reserved to move to enter the
verdict for the Plaintiffs. On motion accordingly, the Court, after argument, ordered the rule
for entering judgment for the Plaintiffs to be discharged, and directed judgment to be entered
for the Defendants

ARGUMENTS ON BOTH SIDES:

(1) On appeal, this decision was reversed and judgment ordered to be entered for the
Plaintiff, Messrs. Lindsay

(2).This appeal was then brought. The Solicitor General (Sir H. S. Giffard) and Mr.
Benjamin, Q.C. (Mr. B. Francis Williams was with them), for theAppellants:-

The question here is, whether the property in the goods passed from the Respondents to
Blenkarn. It is submitted that it did

(3). A title to goods may be acquired even where they are obtained upon false
pretences.Though it will not be an indefeasible title, and may be voidable, it will, as to third
persons at least, be good till it has been avoided. It must in some sense pass the property, for
if it did not, it may be doubtful whether a conviction for obtaining the goods could be
sustained. Here it is clear that there was in the first instance an intention on the part of the
original owner that the property should pass. [LORD PENZANCE:- But was it not the
intention that it should pass to Blenkiron, but not to Blenkarn?] As to some person in Wood
Street the intention plainly did exist that it should pass. [LORD PENZANCE:- Is there no
distinction between the case of a man who, being deceived, enters into a contract, and that of
a man who, being also deceived, does not enter into a contract?] The latter was the case of
Hardman v. Booth (4), so much relied on in the Court below. But that case is distinguishable
from the present, for there the facts

JUDGEMENT:

Held, that no contract was made with Blenkarn, that even a temporary property in the goods
never passed to him, so that he never had a possessory title which he could transfer to the
Defendants, who were consequently liable to the Plaintiffs for the value of the goods.

In the present case Alfred Blenkarn pretended that he was, and acted as if he was, Blenkiron
& Co. with whom alone the vendors meant to deal. No contract was ever intended with him,
and the contract which was intended failed for want of another party to it. In principle the two
cases seem to me to be quite alike. Another case of a similar kind is that of Higgons v.
Burton16

(2), to which similar reasoning was applied. Hypothetical cases were put to your Lordships in
argument in which a vendor was supposed to deal personally with

a swindler, believing him to be someone else of credit and stability, and under this belief to
have actually delivered goods into his hands. My Lords, I do not think it necessary to express
an opinion upon the possible effect of some cases which I can imagine to happen of this
character, because none of such cases can I think be parallel with that which your Lordships
have now to decide. For in the resent case the Respondents were never brought personally
into contact with Alfred Blenkarn; all their letters,

although received and answered by him, were addressed to Blenkiron & Co., and intended for
that firm only; and finally the goods in dispute were not delivered to him at all, but were sent
to Blenkiron & Co., though at a wrong address. This appeal ought therefore, in my opinion,
to be dismissed. LORD GORDON concurred. Judgment appealed from affirmed; and appeal
dismissed with costs.

S. 29. Sale by person in possession under voidable contract:

When the seller of goods has obtained possession thereof under a contract voidable under
section 19 or section 19A of the Indian Contract Act, 1872 (9 of 1872), but the contract has
not been rescinded at the time of the sale, the buyer acquires a good title to the goods,
provided he buys them in good faith and without notice of the seller’s defect of title.

16
1 H. & C. 803.
[s 29.1] Sale by person in possession under voidable contract.—

This section is, in effect, the first part of Exception 3 to section 108 of the Indian Contract
Act, 1872 up to the words “buys them in good faith of the person in possession.” The
wording of the section is taken from section 23 of the English Sale of Goods Act, 1893. It is
the fifth exception to the rule that a man cannot make a valid sale of goods which do not
belong to him. It deals with the case of a sale by a person who has obtained possession of
goods under a contract voidable under section 19 or section 19A of the Indian Contract Act,
1872. Section 19 says that where consent to an agreement is caused by coercion as defined in
section 15, or fraud as defined in section 17 or misrepresentation as defined in section 18, the
agreement is a contract voidable at the option of the party whose consent was so caused.
Section 19A says that where consent to an agreement is caused by undue influence as defined
in section 16, the agreement is a contract voidable at the option of the party whose consent
was so caused. Section 29 validates a sale by a person who has obtained possession of goods
under a contract voidable at the option of the other party on the ground of coercion, fraud,
misrepresentation or undue influence, provided the contract has not been rescinded by the
other party at the time of the sale. A, by misrepresentation has B’s computer delivered for
sale. A in turn sells it to C, who purchases it bona fide without knowing the misrepresentation
practiced on B. The purchase by C is complete, but will have a right of action for damages
against A for the loss sustained by him by such misrepresentation. A person may obtain
possession of goods under a contract which is voidable at the opinion of the lawful owner on
the ground of fraud, misrepresentation or coercion or on the ground of undue influence.
Possession so obtained is not by the free consent of the lawful owner as defined in section 14
of the Indian Contract Act, 1872. It is nevertheless possession of consent, and the person in
possession may make a valid pledge of the goods, provided the contract has not been
rescinded at the time of the pledge. There is in such a case a de facto contract, though
voidable on the ground of fraud and the like. It is, however, different if there is no real
consent, as where goods have been obtained by means of theft as defined in section 378 of
the Indian Penal Code, 1860. A thief has no title and can give none. Section 29 of the Sale of
Goods Act, 1930 has no application if seller has obtained possession otherwise than under a
contract, e.g., by committing an offence of theft. Where goods have been obtained by fraud
the person who has so obtained may either have no title at all, or a voidable title, according to
the nature of the transaction. If the nature of the fraud is such that there never was a contract
between the parties, the person who so obtains the goods has no title and can give none. Thus
if A represents to B that he is acting as agent for C, and B relying on that representation
delivers goods to A as buyer, there is not avoidable contract between A and B, but no
contract at all. No property passes to A and he can neither make a valid sale 109 nor a valid
pledge. This is really a case of a fundamental error as to the personwith whom one is
contracting. There is no real consent and no contract; there is only an offer on B’s part to
theperson with whom alone he means to deal and thinks he is dealing; see Indian
ContractAct, 1872, section 13.But if a person buys goods with the intention of not paying for
them, there is consent, though not free, and a contract, though voidable 110 and he may make
a valid sale or pledge of the goods while the contract is stillsubsisting, 111 though the fraud
may amount to the offence of cheating, as defined in section 415 of the IndianPenal Code,
1860. This was not so under section 178 of the Indian Contract Act, 1872. Under that section
thebuyer who obtained possession of goods “by means of an offence or fraud” could not
make a valid pledge.Under section 29, a person who obtains possession of the goods under a
contract voidable under section 19 orsection 19A may make a valid pledge though the
transaction may amount to an offence or fraud.

[s 29.2] “In good faith”.—

A thing is deemed to be done in good faith when it is in fact done honestly whether it be done
negligently or not.

[s 29.3] Without notice of the seller’s defect of title.—

The said words clearly show that mere acting in good faith is not sufficient. There must be
want of notice or

knowledge to the buyer of the seller’s defect in title or authority to sell. If the buyer or his
agent had the

knowledge or the means of knowledge about the seller’s defect in title or authority to sell and
he shuts his eyes

wilfully thereto, the buyer would be deemed to have notice and he would not get a good
title.17

To establish notice, it is sufficient to show that the circumstances attending the transaction
were such as a reasonable or prudent businessman applying his understanding to the

17
Cahn v Pockett’s Bristol Channel Co, (1899) 1 QB 643.
circumstances would certainly know, asdistinguished from mere suspicion, that the seller had
no authority to sell or pledge. 18Proof of circumstances which ought to put the principal or his
agent, having knowledge of them on enquiry, is sufficient to disentitle him to get a good
title.19In a case where the railway administration appointed a contractor to supply earth and
the contractor removed earth from the plaintiff’s land, the railway administration was held
liable to the plaintiff for conversion of the earth, although the railway administration had paid
to the contractor the price of the earth.

S. 30. Seller or buyer in possession after sale.-

(1) Where a person, having sold goods, continues or is in possession of the goods or of the
documents of title to the goods, the delivery or transfer by that person or by a mercantile
agent acting for him, of the goods or documents of title under any sale, pledge or other
disposition thereof to any person receiving the same in good faith and without notice of the
previous sale shall have the same effect as if the person making the delivery or transfer were
expressly authorised by the owner of the goods to make the same.

(2) Where a person, having bought or agreed to buy goods, obtains, with the consent of the
seller, possession of the goods or the documents of title to the goods, the delivery or transfer
by that person or by a mercantile agent acting for him, of the goods or documents of title
under any sale, pledge or other disposition thereof to any person receiving the same in good
faith and without notice of any lien or other right of the original seller in respect of the goods
shall have effect as if such lien or right did not exist.

[s 30.1] Disposition by seller remaining in possession.—

Sub-section (1) deals with dispositions by a seller continuing in possession of the goods after
sale. It says that where a person has sold goods but continues in possession of them or of
documents of title to them, he may sell them to a third person, and if such person obtains
delivery thereof in good faith and without notice of the previous sale, he gets a good title to
them, although the property in the goods has passed to the first buyer. A pledge, mortgage or
any other disposition of the goods is equally valid. The disposition may be made not only by
the seller in possession, but also by a mercantile agent acting for him. A sells goods to B. B
for his own convenience leaves the goods with A. A fraudulently sells the goods to C, who

18
Central National Bank Ltd v United Industrial Bank Ltd, AIR 1954 SC 181 : [1954] SCR 391.
19
Duni Chand Rataria v Bhuwalka Bros Ltd, AIR 1955 SC 182 : [1955] 1 SCR 1071.
buys them in good faith and without notice of the sale to B. C gets a good title to the goods.
The delivery of the goods by A to C has the same effect as if A were expressly authorised by
B to deliver the goods. The transaction would be equally valid if A pledged or mortgaged the
goods to C.It will be seen from what is stated above that to enable the seller to pass a good
title—

(1) the seller must continue in possession of the goods or of the documents of title to the
goods as a seller. Possession as a hirer or bailee of the goods from the buyer after delivery of
the goods to him will not do. 20

(2) the goods must have been delivered to the buyer or the documents of title must have been
transferred to him. A mere agreement for sale, pledge or other disposition will not do;

(3) good faith and absence of notice of the previous sale on the part of the second buyer.

[s 30.2] Disposition by buyer obtaining possession.—

Sub section (2) deals with the converse case of a sale or other disposition by the buyer of
goods in which the property has not yet passed to him. The section says that if the buyer
obtains possession of the goods, before the property in them has passed to him, with the
consent of the seller, he may sell, pledge or otherwise dispose of the goods to a third person,
and if such person obtains delivery of the goods in good faith and without notice of any lien
or other right of the original seller in respect of the goods, he will get a good title to them. As
to an unpaid seller’s lien, see section 47; as to his right of stoppage in transit, see section 50
below.

To enable the buyer to pass a good title—

(1) There must be possession of the goods or documents with the consent of the seller. A sells
certain copper to B and draws on B for the price and forwards to B the bill of exchange and
bill of lading (endorsed in blank) together to secure acceptance or payment of the bill. B who
is insolvent does not accept the bill of exchange, but transfers the bill of lading to C in
fulfilment of a previous contract to supply him with copper. C in good faith pays the price. A

20
Parbati Devi Bagla v Lachminarayan, AIR 1957 Cal 551; Staffs Motor Guarantee, Ltd v British Wagon Co,
(1934) 2 KB
305; Union Transport Finance, Ltd v Ballardie, (1937) 1 KB 510. The word “possession” includes possession by
another
person on behalf of the person whose possession is material; City Fur Manufacturing Co. Ltd v Fureenbond
(Brokers)
London, Ltd, (1937) 1 All ER 799.
cannot stop the copper in transit. Here B, not having accepted the bill of exchange, was
bound to return the bill of lading to A, and the property in the goods did not pass to him
[section 25(3)]. B, however, has possession of the bill of lading with the consent of the seller,
the seller having voluntarily, and without being deceived by any trick, sent it to him. B
therefore could pass a good title to C.21The words “with the consent of the seller” are very
material. The Supreme Court has held that “the consent” in this section means “agreeing on
the same thing in the same sense” and does not mean “free consent.” 22 In that case A having
agreed to sell to B certain shares sent the share certificates with blank transfer forms to his
banker with instructions to deliver them to B against payment of the price. The bank’s clerk
went to B’s office with the documents to deliver them against receipt of price thereof. The
bank’s clerk placed the documents on B’s table asking B to pay the price and to sign the
transfer form. B began to scrutinise the documents which the bank’s clerk allowed but the
bank’s clerk insisted upon the payment of the price thereof before B took delivery thereof. On
the pretext of bringing moneys, B left the office and took with him the said documents. B
disappeared from the other door and pledged them. Plaintiff Bank contended that it received
shares by way of pledge in good faith and without notice of the title of the intending
purchaser B and Plaintiff Bank had actual possession of share with the consent of the seller
and so pledge would be effective under section 30(2). It was held that B, the intending buyer,
had not obtained possession of the documents “with the consent of the seller”. B’s possession
was without such consent; B could not therefore create a valid pledge and hence the pledgee
did not acquire any title against the true owner and/or against the owner’s bank.23

(2) The goods must have been delivered to the buyer or the documents of title transferred to
him. A mere agreement for sale, pledge or other disposition will not do.

(3) There must be good faith, and absence of notice of the seller’s right of property on the
part of the second buyer.

[s 30.3] Chain of contracts.—

Sub-section (2) appropriately applies to a case involving a chain of contracts wherein the
documents, such as delivery orders, are handed over by one seller to his buyer and the latter
in his turn to his buyer and so on. But in such cases, the buyer gets possession of the

21
Duni Chand Rataria v Bhuwalka Bros Ltd, AIR 1955 SC 182 : [1955] 1 SCR 1071.
22
Pramatha Nath v Probirendra, AIR 1966 Cal 405.
23
Pramatha Nath v Probirendra, AIR 1966 Cal 405.
documents of title to the goods with the consent of the seller after paying the price thereof in
cash or on credit.24

[s 30.4] Hire-purchase agreements.—

The hirer under a hire-purchase agreement is not a person who “has agreed to buy goods”
within the meaning of sub-section (2) unless he has hound himself to buy. A mere option to
purchase is not sufficient.25

[s 30.5] Mercantile agent.—

For the definition of mercantile agent, see section 2(9). See sale by a mercantile agent under
section 27.

[s 30.6] Documents of title to goods.—

[s 30.7] Or other disposition.—

These words follow the words “any sale or pledge” and hence they have to be construed
ejusdem generis with the preceding words.26 Therefore there must be a transfer of property or
a transfer of a right to property. A hypothecation will not be covered by the said words “or
other disposition” as it does not involve transfer of property.27

For the definition of documents of title to goods, see section 2(4).

Ramchandra Maroti Bidkar vState of Maharashtra, through Collector/Special Land

Acquisition Officer and others 2019 Indlaw MUM 1208

1.This is an application filed on behalf of the appellant (original claimant) seeking permission
to transpose original non-applicant No.3 before the Reference Court as an appellant. It is
relevant that the said original non-applicant No.3 was the uncle of the appellant and he is now
represented by his legal representatives.

2. In the present case, land belonging to the appellant and the respondent No.3 was acquired
by the respondent Nos.l and 2. The land admeasuring 1.63 HR from 3.04 HR located in
Survey Nos.623/1, 623/2 and 623/3 in Mouza Salod, Tahsil and District Wardha was
acquired for construction of Deoli Branch Canal. It is also undisputed that out of 1.63 HR

24
Nandlal v Bank of Bombay, (1910) 12 Bom LR 316, 337; Jones v Gordon, (1877) 2 App Cas 616, 628.
25
Gobind Chunder v Ryan, (1861) 9 Moore IA 140 (164).
26
Jones v Gordon, (1877) 2 App Cas 616, 625
27
Croft v Lumley, (1858) 6 HL Cas 672, 705 : (1843-60) All ER 162 : 10 ER 1459.
land, 1.43 HR land was owned by the appellant and balance 0.20 HR land was owned by the
respondent No.3. Award was passed on 31/07/2010 by the Land Acquisition Officer.

3. In pursuance of the award, the Land Acquisition Officer had prepared a consolidated
cheque for amount of compensation of Rs. 5,39,406/-. This amount pertained to entire 1.63
HR land acquired in the present case and the amount of compensation was not separately
granted to the appellant and the respondent No.3 for their respective areas of land i.e. 1.43
HR and 0.20 HR respectively. In this situation, as the cheque for the amount of
compensation was a consolidated cheque, a dispute appears to have arisen between the
appellant and the respondent No.3, who were relatives and ultimately a compromise was
executed between them, wherein it was agreed by the respondent No.3 that the appellant
would collect the cheque towards the consolidated amount of compensation and that both
of them would cooperate each other for further action in that regard. This compromise was
executed between the parties and accordingly the consolidated cheque was received by the
appellant under protest. Thereafter, the appellant filed application under section 18 of the
Land Acquisition Act, 1894 (hereinafter referred to as "Act of 1894") seeking
enhancement of compensation. In this application, the said facts regarding consolidated
cheque being received by the appellant for himself and the respondent No.3 were placed on
record and it was specifically stated that the reference application was being filed and the
respondent No.3 was arrayed as non-applicant No.3 in the said application.

4. Thereafter, the reference Court partly allowed the reference application and granted
enhanced compensation to the appellant with statutory benefits and interest as per the
provisions of the Act of 1894. Although it was noted by the Reference Court in the
impugned judgment and award that 1.63 HR land was acquired, while granting
enhancement of compensation, such enhanced compensation was granted only in respect of
1.43 HR of land.

5. Aggrieved by the impugned judgment and order of the Reference Court, the appellant filed
present First Appeal No.215 of 2017 in this Court. Connected appeals were also pending in
this Court, which stood partly allowed and disposed of by common judgment and order dated
08/08/2019 by further enhancement of compensation. But, the present appeal was segregated
as the instant application filed by the appellant seeking to transpose the respondent No.3 as
appellant, was pending in this Court. In the said application, it has been stated that
transposition ought to be permitted in the interest of justice and that technicalities ought not
come in the way of the respondent No.3, now represented through legal representatives, to
get just and fair enhanced compensation to which the appellant would be found to be entitled.

6. This application was opposed on behalf of the respondent Nos.1 and 2. It was submitted
that since the respondent No.3 had not filed application for reference under section 18 of
the Act of 1894 and no challenge was raised to the award passed by the Land Acquisition
Officer, such transposition of the respondent No.3 as appellant in the present appeal could
not be permitted. It was emphasized that by not preferring application under section 18 of
the Act of 1894, the respondent No.3 had accepted the award of the Land Acquisition
Officer and therefore, there was no question of permitting of such transposition. In the
alternative, it was submitted that if the application was to be allowed, the respondent No.3
upon being transposed, ought not to be granted interest on the enhanced compensation
from the date of the award of the Land Acquisition Officer till the application for
transposition being allowed.

7. Learned counsel Smt.Sharda Wandile appearing for the appellant submitted in support
of the application for transposition that on proper reading of the provisions of the Act of
1894, as also Code of Civil Procedure, 1908 and the Limitation Act, 1963, it would be
clear that limitation for transposition of respondent No.3 as an appellant in this appeal,
would not apply and that there was no impediment in granting the present application
despite the fact that the respondent No.3 had not specifically preferred an application under
section 18 of the Act of 1894, particularly because he was arrayed as non-applicant No.3
before the Reference Court. Reliance was placed on judgments of the Hon'ble Supreme
Court in the cases of Mukesh Kuma nad others v. Col.Harbans Waraich and others,
reported in (1999) 9 SCC 380 1999 Indlaw SC 792, Kiran Tandon v. Allahabad
Development Authority and another, reported in (2004) 10 SCC 745 2004 Indlaw SC
1464, Himalayan Tiles & Marbles (P) Ltd. v. Francis Victor Coutinho (dead) by LRs and
Ors., reported in 1980 AIR 1118 and the judgment of Allahabad High Court in the case of
Vijay Shanker Rai and others v. Sarvjeet Rai and others, reported in 2015 (108) ALR 130
2014 Indlaw ALL 3232.

8. As noted above, it was submitted by Mr.M.A.Kadu, the learned counsel appearing for
the respondent No.2 and Smt. A.R.Kulkarni learned A.G.P. appearing for the respondent
No.1 that the application for transposition was not maintainable, particularly in the absence
of the respondent No.3 filing an application under section 18 of the Act of 1894 before the
Reference Court. It was reiterated that in any case, the respondent No.3 would not be
entitled to grant of interest for the period between the date of the award of the Land
Acquisition Officer and the transposition application being allowed by this Court, if at all.

9. The emphasis in the present case in support of the application for transposition was that
the respondent No.3 was always a party before the Reference Court and that in the peculiar
facts and circumstances of the present case, the prayer for transposition deserved to be
allowed in the interest of justice. In order to examine the contentions raised on behalf of
the appellant, it would be necessary to peruse the compromise executed between the
appellant and the respondent No.3, which was reiterated by the legal representatives of the
respondent No.3 by executing another document dated 24/10/2017, wherein the said legal
representatives stood by the compromise executed between their predecessor (original
respondent No.3) and the appellant. The said two documents clearly established that the
original respondent No.3 and after him, his legal representatives had agreed with the
appellant that the consolidated amount of compensation for the entire 1.63 HR land would
be received by the appellant on his behalf as well as the original respondent No.3 and
further the parties would cooperate each other for consequent action in the matter.

10. A perusal of the application filed by the appellant under section 18 of the Act of 1894,
would show that the aforesaid facts regarding receiving of the consolidated amount of
compensation by one cheque by the appellant for himself and on behalf of the original
respondent No.3 were stated and the fact about compromise between them was also placed
on record. It was also stated in the said application that in that backdrop, the respondent
No.3 was being added as non-applicant No.3 before the Reference Court. It was also
placed on record that the cheque towards the consolidated amount of compensation of Rs.
5,39,406/- was accepted by the appellant under protest and that the reference application
was being preferred for enhancement of compensation. There is no doubt about the fact
that while pardy allowing the reference application, the Reference Court granted enhanced
compensation only for 1.43 HR of land, which was owned by the appellant, despite taking
note of the fact that the total acquired land was 1.63 HR, which included 0.20 HR of land
of the original respondent No.3. The appeal was then preferred before this Court seeking
further enhancement of compensation.

11. The present application for transposition was filed stating that it was necessary for
transposing the original respondent No.3 as appellant for proper adjudication of the claim
of enhanced compensation for the claimants so that the legal representatives, now
representing the original respondent No.3 were not denied just and fair enhanced
compensation for acquisition of 0.20 HR of land belonging to the respondent No.3, which
was acquired in the present case.

12. This application has been moved under Order I Rule 10 of the Civil Procedure Code,
1908 and it is claimed by the appellant that in such a case, where transposition is sought,
limitation would not apply and this was clear from section 21 of the Limitation Act, 1963.
In this context, a perusal of section 21 of the Act of 1963, becomes relevant, which reads
as follows:

"21. Effect of substituting or adding new plaintiff or defendant.- (1) Where after the
institution of a suit, a new plaintiff or, defendant is substituted or added, the suit shall, as
regards him, be deemed to have been instituted when he was so made a party:

Provided that where the court is satisfied that the omission to include a new plaintiff or
defendant was due to a mistake made in good faith it may direct that the suit as regards
such plaintiff or defendant shall be deemed to have been instituted on any earlier date.

(2) Nothing in sub-section (1) shall apply to a case where a party is added or substituted
owing to assignment or devolution of any interest during the pendency of a suit or where a
plaintiff is made a defendant or a defendant is made a plaintiff."

13. In the context of the said provision, particularly while considering prayer for
transposition, the Hon'ble Supreme Court in the case of Mukesh Kumar and others v.
Col.Harbans Waraich and others, (supra) has held as follows:

"9. Section 21 of the Limitation Act provides that wherever on institution of a suit a new
plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to
have been instituted when he is so made a party, However, if court is satisfied that
omission to include a new plaintiff or defendant was due to a mistake made in good faith it
may direct that the suit as regards such plaintiff or defendant shall be deemed to have been
instituted on any earlier date. Sub section (2) thereof makes it very clear that these
provisions would not apply to a case where a party is added or substituted owing to
assignment or devolution of any interest during the pendency of the suit or where plaintiff
is made a defendant or a defendant is made a plaintiff. Section 21 has no application to
cases of transposition of parties. Since transposition also involves addition of a plaintiff or
a defendant, as the case may be, into the suit as originally filed, sub-section (2) of Section
21 of the Limitation Act applies only to those cases where the claim of the person
transposed as a plaintiff can be sustained on the plaint as originally filled or where a person
remaining as a plaintiff after the said transposition can Sustain his claim against the
transposed defendant on the basis of the plaint as originally filed. For sub-section (2) to
apply all that is necessary is that suit as filed originally should remain the same after the
transposition of the plaintiff and there should be no addition to its subject matter. Where a
suit as originally filed is properly framed with the proper parties on record the mere change
of a party from array of defendants to that of plaintiffs under Order I Rule 10 of the Civil
Procedure Code will not make him a new plaintiff and will not bring the case within this
Section and in such a case sub-section (1) will not apply. For instance, where one of the
plaintiffs refusing to join as a plaintiff was first made a defendant and thereafter transposed
as a plaintiff, he is not a new plaintiff. Therefore, the argument advanced on behalf of the
appellants that the suit is barred by limitation insofar as Ashwani Kumar is concerned
inasmuch as he is transposed as a plaintiff after the period of limitation does not stand to
reason"

14. In the case of Kiran Tandon v. Allahabad Development Authority (supra), the question
of transposition of the State as an appellant with the appellant acquiring body was
considered and it was laid by the Hon'ble Supreme Court that for a proper adjudication of
the matter such transposition could certainly be permitted. The relevant portion of the said
judgment of the Hon'ble Supreme Court in the case of Kiran Tandon v. Allahabad
Development Authority (supra) reads as follows:

"4. Shri Sunil Gupta, learned Senior Counsel for the claimant has at the very outset
assailed the order of the High Court whereby the application moved by the State of U.P.
for transposing it as appellant in the appeals preferred by ADA was allowed. In the appeals
preferred by the ADA against the judgment and award of the Additional District Judge
Smt. Kiran Tandon (widow of the original claimant Ravindra Kumar Tandon) was arrayed
as Respondent 1 and the State of U.P. was arrayed as pro forma Respondent 2. The
applications for transposition were supported by the affidavit of Tehsildar Sadar,
Allahabad, wherein it was averred that an objection had been raised on behalf of the State
of U.P. before the Additional District Judge that the acquired land was State land and
therefore the entire compensation amount should be awarded to the State of U.P. The land
had been acquired for construction of residential flats by ADA which is a State within the
meaning of Article 12 of the Constitution and is therefore competent to raise any or all of
the objection on behalf of the State Government. Therefore, in order to avoid any technical
objection and in the interest of justice it was expedient that the State of U.P. may be
transposed as Appellant 2 in the appeal. The High Court held that as the ADA and State of
U.P. were disputing the title of the claimant to receive the entire amount of compensation
and the State of U.P. having already been impleaded as pro forma respondent in the appeal,
the interest of justice required that it should be transposed as the appellant in the appeal.
Sub-rule (2) of Order I Rule 10 CPC lays down that the court may at any stage of the
proceedings, either upon or without the application of either party, and on such terms as
may appear to the court to be just, order that the name of any party improperly joined,
whether as plaintiff or defendant, be struck out, and that the name of any person who ought
to have been joined, whether as plaintiff or defendant or whose presence before the court
may be necessary in order to enable the court effectually and completely to adjudicate
upon and settle all the questions involved in the suit, be added. It is well settled that the
court has power under sub-rule (2) Order I Rule 10 CPC to transfer a defendant to the
category of plaintiffs and where the plaintiff agrees, such transposition should be readily
made. This power could be exercised by the High Court in appeal, if necessary, suo motu
to do complete justice between the parties. This principle was laid by the Privy Council in
Bhupendra Narayan Sinha Bahadur v. Rajeshwar Prosad Bhakat and has been consistently
followed by all the courts. In fact, the pleas raised by ADA and the State of U.P. were
identical and in order to effectuate complete adjudication of the question involved in the
appeal it was in the interest of justice to transpose the State of U.P. as Appellant 2 in the
appeal. We are, therefore, of the opinion that no exception can be taken to the course
adopted by the High Court in transposing the State of U.P. as appellant in both the
appeals."

15. In the case of Himalayan Tiles & Marbles (P) Ltd. v. Francis Victor Coutinho (dead)
by LRs & Ors. (supra), the Hon'ble Supreme Court discussed the concept of person
interested under section 18 of the Act of 1894 and found that a company on whose behalf,
the State was acquiring land was certainly a person interested and that the said concept was
to be construed liberally and as an inclusive definition. The said position of law laid down
by the Hon'ble Supreme Court was followed by the Allahabad High Court in the case of
Vijay Shanker Rai and others v. Saryjeet Rai and others (supra) to hold that transposition
ought to be allowed and that limitation would not apply to such an application, as long as a
respondent was sought to be transposed as an appellant, as in the present case. A proper
reading of the said judgments of the Hon'ble Supreme Court in the context of Order I Rule
10 of Civil Procedure Code, 1908 read with section 21 of the Limitation Act, 1963, as also
section 53 of the Act of 1894 so far as they are not inconsistent with anything contained
under the said Act, it becomes clear that the application for transposition filed by the
appellant in the present case, deserves to be considered and granted.

16. Although a specific objection was raised on behalf of the respondent Nos.1 and 2 that
failure to file application under section 18 of the Act of 1894 by the respondent No.3 was
fatal for consideration of such a prayer for transposition, applying the said position of law
laid down by the Hon'ble Supreme Court to the facts of the present case it would become
clear that as long as the respondent No.3 was a party before the Reference Court as non-
applicant No.3, the remedy for transposition could certainly be considered. The contention
raised on behalf of the respondent Nos.l and 2 that the respondent No.3, who was non-
applicant No.3 before the Reference Court, had accepted the award, cannot be sustained in
the peculiar facts of the present case, because the compromise document placed at Exhibit-
20 before the Reference Court clearly states that the respondent No.3 and the appellant had
agreed that the consolidated cheque towards compensation for the entire acquired land of
1.63 HR was to be accepted by the appellant and that the parties were to cooperate with
each other for further action to be taken in that regard. It is a matter of record that the
consolidated cheque was disbursed by the respondent Nos.l and 2 to the appellant, which
constituted the quantum of compensation to the entire 1.63 HR land, which included 0.20
HR land belonging to the respondent No.3. The said cheque was accepted under protest by
the appellant, obviously not only on his behalf, but also on behalf of his uncle, respondent
No.3 and in terms of the compromise entered into between them, the reference application
was preferred before the Reference Court, wherein the respondent No.3 was arrayed as
non-applicant No.3. In view of the said peculiar facts and circumstances of the present
case, it cannot be said that the application for transposition could not be considered by this
Court only because a separate application under section 18 of hte Act of 1894, was not
preferred by the respondent No.3 before the Reference Court.

17. Since limitation would not apply for such an application under section 21 (2) of the
Limitation Act, 1963, the application could certainly be considered by this Court. Taking
into consideration the contents of the said application, the contents of the reference
application made before the Reference Cout, the two documents of compromise placed on
record and the overall facts and circumstances of the case, this Court is of the opinion that
the application for transposition deserves to be allowed in the interest of justice and for
ensuring that just and fair compensation is paid to the claimants in the present case i.e. the
appellant and the respondent No.3. Transposition of the respondent No.3, now represented
through his legal heirs, as an appellant in the appeal would be a step towards acheiving the
objective of grant of just and fair compensation to the claimants under the provisions of the
Act of 1894.

18. As regards the contention raised on behalf of the respondent Nos.1 and 2 that failure on
the part of the respondent No.3 to file a reference application in the present case should
result in depriving the respondent No.3 from interest on enhanced compensation from the
date of the award of the Land Acquisition Officer to the date when the application for
transposition is allowed, it is found that when the application for transposition deserves to
be allowed on the basis of the position of law and proper interpretation of provisions of
various Acts and the Civil Procedure Code, there is no reason to deprive the respondent
No.3, now represented through legal representatives, from interest on the enhanced
compensation. Once the application for transposition is allowed, there cannot be any such
condition, because the concept of limitation is not applicable to such an application for
transposition and it cannot be treated as if the respondent No.3 was guilty of delay, to
deprive him of all benefits of enhanced compensation including grant of interest. This is
particularly so because the compensation awarded by the Land Acquisition Officer was
disbursed in a conslidated manner by a single cheque to the appellant, who received it for
and on behalf of himself and the respondent No.3 under protest. Consequently, further
enhancement of such quantum of compensation with all benefits could not be denied to
respondent No.3 even after it is found that the application for transposition deserves to be
allowed.

19. In view of the above, the present application for transposition is allowed. The
respondent No.3, now represented through legal representatives, are transposed as
appellant Nos.2(a) to 2(c) in the present appeal. The amendment be carried out forthwith.
The application stands disposed of accordingly.

Application allowed

Hanmant Jaisingh Ahirekar and others v Baburao Raghunath Ahirekar, Since

Deceased, through Heirs and Legal Representatives, Kantaram Baburao Ahirekar
and another

1. This petition under Article 227 of the Constitution of India takes exception to the judgment
and order dated 20th October, 1994, passed by the learned Member, Maharashtra Revenue
Tribunal, Pune-1 ("the MRT") in Revision Application No. MRT.NS.VI.1/91
(TNC.B.132/91), whereby the learned Member allowed the revision application, and quashed
and set aside the order passed by the Sub-Divisional Officer, Koregaon, Sub-Division, Satara,
on 15th October, 1990, in Tenancy Appeal No.4 of 1988, under Section 84 of the
Maharashtra Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as "the Act of
1948") directing the eviction of the respondents from the agricultural lands bearing Gat
Nos.22, 24A, 287, 290 to 294A situated at village Vikhale, Taluka Koregaon, District Satara
(hereinafter referred to as "the suit lands").

2. The background facts leading to the instant petition can be stated in brief as under:

(a) The predecessor-in-title of the respondents, Shri.Tatya Ahirekar was the landlord of the
suit lands. Mr.Jaisingh Ahirekar, the predecessor-in-title of the petitioners, was the tenant
of the suit lands. The petitioners and their predecessor-in-title are hereinafter referred to as
"the tenant" and the respondents and their predecessor-in-title are referred to as "the
landlord".

(b) The original landlord obtained a certificate under Section 88-C of the Act of 1948, on
10th July, 1962, on the ground that the lands did not exceed the economic holding and total
annual income of the landlord did not exceed Rs. 1,500/-. It is the claim of the landlord that
in view of the grant of the certificate under Section 88-C of the Act of 1948, the
Agricultural Lands Tribunal ("ALT") was persuaded to drop the proceedings under Section
32-G of the Act of 1948. The original tenant Jaisingh died on 23rd September, 1980. The
landlord preferred an application bearing Application No.77 of 1982, seeking a negative
declaration that the deceased Jaisingh was not the tenant of the suit lands. By order dated
20th September, 1987, the ALT dismissed the application of the landlord holding, inter
alia, that the deceased Jaisingh was in cultivation of the suit lands on the Tiller's day. The
tenants were advised to file an application under Section 84 of the Act of 1948 for
restoration of possession of the suit lands.

(c) The tenants filed an application under Section 84 of the Act before the Collector,
Satara. The Sub-Divisional Officer, Satara, after holding an enquiry was persuaded to
allow the application holding, inter alia, that though the landlord was a certificated
landlord, the possession of the suit lands was not obtained in accordance with the
provisions contained in Section 33-B of the Act of 1948; the ALT in a proceedings under
Section 70(b) of the Act of 1948 found that the deceased tenant was in cultivation of the
suit lands and the said finding has attained finality. In this backdrop, the claim of the
landlords that they have obtained possession of the suit lands from the tenants was held to
be unsustainable as the landlords were not entitled to take possession of the tenanted lands,
otherwise than in accordance with the provisions contained in the Act of 1948. Thus, the
Sub-Divisional Officer allowed the application and directed the landlords to evict
themselves from the suit lands and restore the possession of the suit lands to the tenants.

3. Being aggrieved by and dissatisfied with the aforesaid order of restoration of possession,
the landlords preferred revision before the MRT. It appears that the said revision
application was not preferred within the stipulated period of limitation, and, thus, was
accompanied by an application for condonation of delay. The learned Member, MRT, after
hearing the parties, was persuaded to condone the delay and allow the revision application
by one and the same order dated 20th October, 1994. To arrive at the finding that the
deceased Jaisingh was not in possession of the suit lands on Tiller's day, the learned
Member, MRT, placed reliance on a statement of Hanmant Ahirekar, petitioner No.1, to
the effect that the landlords were personally cultivating the suit lands since many years.
Thus, the learned Member interfered with the order of restoration of possession of the suit
lands, passed by the Sub-Divisional Officer.

4. Being aggrieved by and dissatisfied with the aforesaid order of MRT, the petitioners
have invoked the writ jurisdiction of this Court.

5. I have heard Shri Pradeep J. Thorat, the learned counsel for the petitioners and Mr.Pai,
the learned counsel for the respondents at a considerable length. I have also perused the
orders passed by the authorities under the Act, 1948, and the original record and
proceedings.

6. Mr.Thorat mounted a multi-pronged challenge to the impugned order passed by MRT.

First and foremost, according to Mr.Thorat, the learned Member, MRT committed a grave
error in passing a composite order of condonation of delay in preferring the revision and
deciding the revision itself. The said course of action caused serious prejudice to the
petitioners-tenants. The tribunal did not get the jurisdiction to entertain and decide the
revision unless the delay was condoned. This could not have been done by the tribunal
while finally determining the revision, urged Mr.Thorat. Secondly, the learned Member
committed a manifest error in discarding the fact that the proceedings under section 70(b)
had attained finality and the negative declaration sought by the landlord was refused. The
tribunal could not have resorted to a statement allegedly recorded in the said proceedings
to overturn a finding of fact recorded by the Sub-Divisional Officer in a proceedings under
section 84 of the Act. Thirdly, the learned Member, MRT exceeded the revisional
jurisdiction and embarked upon a fact-finding enquiry, which is impermissible in law.
Fourthly, the learned Member, MRT lost sight of a primary fact that the certificated
landlord was enjoined to institute a proceedings under section 33-B of the Act, within the
stipulated period. In the absence of such proceedings, the landlord was not justified in
divesting the tenants of the possession of the suit land, otherwise than in accordance with
the provisions of the Act, 1948. Thus, the fact that the tenants allegedly surrendered the
possession of the suit land voluntarily, was of no avail. The MRT, thus, completely
misdirected itself in allowing the revision by the impugned order, submitted Mr.Thorat.

7. Mr.Pai, the learned counsel for the landlord, on the other hand, submitted that not much
mileage can be drawn from the fact that the application for condonation of delay in
preferring the revision and the revision itself were determined by one and the same order,
impugned herein. Mr.Pai took the Court through the impugned order in support of the
submission that the learned Member ascribed adequate reasons to condone the delay. In the
circumstances, the composite order cannot be called in question. On the merits of the
matter, Mr.Pai would urge that the tenants had resorted to the proceedings under section 84
of the Act with a clever design to overcome the possible challenge on the count of
limitation, which the tenants would have encountered if the proceedings under section 29
of the Act was instituted. Since it was a case of voluntary surrender, pursuant to an order
under section 88-C of the Act, 1948, the recourse to the provisions under section 84 of the
Act was wholly impermissible. To obviate a possible challenge on the count of limitation
and also with a view to deprive the landlord an avenue of appeal, the tenants invoked the
jurisdiction of the Collector under section 84 of the Act. Moreover, since the proceedings
under section 32G of the Act have been dropped by the authorities under the Act, at this
juncture, no interference is warranted in the impugned order, canvassed Mr.Pai.

8. The aforesaid submissions now fall for consideration. To begin with, the aspect of
limitation. Indubitably, the learned Member, MRT, proceeded to condone the delay and
determine the revision, simultaneously, by the impugned order. The justifiability of such a
course of action is put in contest by the tenants. In order to lend support to the submission
that such a course of action is impermissible, the learned counsel for the petitioners placed
reliance upon two judgments of a learned Single Judge of this Court. In the case of
National Buildings Construction Corporation Ltd & Anr. Vs. Regional Labour
Commissioner (Central), Nagpur 2006(1) Mh.L.J. 669, wherein the authority had
condoned the delay in the matter and had also allowed the application on merits by a
common order, the learned Single Judge, observed that in view of an earlier order passed
by the Division Bench of this Court in the case of Achutrao Vs. Topaji 1963 Mh.L.J. 93
and another judgment in Writ Petition No.1796 of 2004, such course of action was not
open and the order impugned therein was required to be quashed and set aside on that
ground alone. Ultimately, the matter was remitted back to the respondent-Regional Labour
Commissioner, for a fresh determination.

9. The aforesaid judgment was followed in the case of Shankar Ramrao Rangnekar Vs.
Narayan Sakharam Sawant & Ors. 2013 (1) Mh.L.J. 706, wherein the MRT had condoned
the delay in preferring the revision and decided the revision also by one and the same
order. This Court had observed in paragraph 8 as under :

"8 The law in this respect is well settled. When there is delay, the Tribunal has to first
proceed to consider its condonation. It gets jurisdiction to consider the controversy on
merits only after such delay is condoned, Here consideration of merits as also
consideration of the prayer for condonation of delay is simultaneous. View of this Court in
M.M. College of Science Vs. R.T. Borkar 1997 (2) Mh.L.J. 168 and National Building
Construction vs. Regional Labour Commissioner 2006 (1) Mh.L.J. 669 clinch the issue in
favour of Petitioner."

10. With the aforesaid observations, the matter was remitted back to MRT, to first consider
the prayer for condonation of delay and, in the event delay is condoned, by passing
appropriate order, then, the MRT shall look into the controversy in the revision on merits.

11. The insistence upon the determination of application for condonation of delay, in the
first instance, stems from two objectives. One, in the absence of the order of condonation
of delay, the tribunal is denuded of the jurisdiction to entertain the proceedings on merits.
Two, the determination of application for condonation of delay, one way or the other,
provides an opportunity of hearing to the parties, and, a further opportunity to assail the
legality, propriety and correctness of the said order, before an appropriate forum, in the
event, any of the parties is aggrieved by the said determination.

12. The learned counsel for the respondents endeavoured to impress upon the Court that, in
the instant case, the consideration of the application for condonation of delay and the
determination of the revision on merits, neither constitutes a serious procedural defect nor
caused any prejudice to the petitioners. Laying emphasis upon the observations of the
Supreme Court in the case of N. Balakrishnan Vs. M. Krishnamurthy AIR (1998) SC 3222,
inter-alia, to the effect that the words "sufficient cause" under section 5 of the Limitation
Act, 1963 should receive a liberal construction so as to advance substantial justice, it was
submitted that the MRT has ascribed justifiable reasons and, on that count, this Court
should be loathe to interfere with the order of MRT.

13. Drawing the attention of the Court to the observations in paragraph 7 of the judgment
of this Court in the case of Shankar Ramrao Rangnekar (Supra), wherein the Court has
recorded that no just and sufficient cause to condone the delay was apparent, it was urged
that the instant case stands on a different footing as the learned Member, MRT has given
elaborate reasons to condone the delay. Alternatively, it was submitted that the matter
needs to be remitted back to the learned Member, MRT for a fresh determination.

14. It is true that the learned Member, MRT has assigned reasons to condone the delay in
paragraph 6 of the impugned order. It was, in terms, observed that there was no
carelessness and gross negligence on the part of the applicant and, thus, the tribunal was
inclined to lean in favour of condonation of delay. Had there been no other factor, this
Court would have preferred to proceed to determine the controversy raised in the instant
matter, on merits, rather than finding fault with the course of action adopted by the learned
Member, MRT. However, as it would become evident from the following discussion that
the learned Member, MRT has misdirected himself both, on jurisdictional aspect and the
core controversy between the parties, the irregularity in condoning the delay, while finally
determining the revision, cannot be simply brushed aside.

15. As observed earlier, the learned Member, MRT was persuaded to overturn the finding
recorded by the Sub-Divisional Officer, by taking into account a statement made by
Hanmant Ahirekar, Petitioner No.1, to the effect that the landlord was personally
cultivating the suit land since last many years. On the strength of aforesaid statement, a
further inference was drawn that the tenant was not in possession of the suit land on the
Tiller's day. The learned Member, MRT, thus, found that the claim of the landlord that the
deceased original tenant had voluntarily surrendered the possession of the suit land, after
the grant of a certificate under section 88-C of the Act, was reasonable and appropriate.

16. Evidently, the learned Member, MRT interfered with a finding of fact recorded by the
Sub-Divisional Officer to the effect that the landlord had not taken possession of the suit
land in accordance with the provisions of the Act, 1948. Interestingly, the learned Member,
MRT did not advert to the fact that the ALT had recorded a finding, in a proceeding under
section 70(b) of the Act, 1948, that the tenant was in possession of the suit lands on 1st
April 1957 and, thus, the landlord's application seeking a negative declaration was
dismissed.

17. Whether this approach of MRT is justifiable? For an answer, it is necessary to

appreciate the nature of the revisional jurisdiction exercised by MRT under section 76 of
the Act. To retain emphasis, and appreciate contours of the jurisdictional limitations of
MRT, section 76 is extracted below :-

"S. 76 Revision : (1) Notwithstanding anything contained in the Bombay Revenue Tribunal
Act, 1939, 1 an application for revision may be made to the [Maharashtra Revenue
Tribunal] constituted under the said Act against any order of the Collector on the following
grounds only:

(a) that the order of the Collector was contrary to law;

(b) that the Collector failed to determine some material issue of law; or

(c) that there was a substantial defect in following the procedure provided by this Act,
which has resulted in the miscarriage of justice.

(2) In deciding applications under this section the [Maharashtra Revenue Tribunal] shall
follow the procedure which may be prescribed by rules made under this Act after
consultation with the [Maharashtra Revenue Tribunal]."

18. From the phraseology of Section 76(1) it becomes abundantly clear that the MRT is a
Tribunal of limited jurisdiction. The grounds on which MRT may entertain a challenge to,
and, if found necessary, interfere with, an order passed by the Collector have been
specifically spelled out by Clauses (a) to (c). The jurisdiction of MRT is thus
circumscribed by the text of sub-section (1) of Section 76.

19. The distinction between revisional and appellate jurisdiction is well recognised. The
limited nature of revisional jurisdiction in contradistinction to the appellate power was
illuminatingly pointed out by a three-Judge Bench of the Supreme Court in the case of the
The State of Kerala vs. K. M. Charia Abdulla and Co. AIR 1965 Supreme Court 1585., in
the following words:

"There is an essential distinction between an appeal and a revision. The distinction is based
on differences implicit in the said two expressions. An appeal is a continuation of the
proceedings; in effect the entire proceedings are before the appellate authority and it has
power to review the evidence subject to the statutory limitations prescribed. But in the case
of a revision, whatever powers the revisional authority may or may not have, it has not the
power to review the evidence unless the statute expressly confers on it that power. That
limitation is implicit in the concept of revision."(emphasis supplied)

20. A profitable reference can also be made to a recent Constitution Bench judgment in
Hindustan Petroleum Corporation Ltd. vs. Dilbahar Singh (2014) 9 SCC 78 2014 Indlaw
SC 565, wherein while construing the revisional power of the High Court, under the State
Rent Control legislations, the Supreme Court adverted to, and explained, the distinction
between appellate and revisional jurisdiction. The relevant part of paragraph 28 reads as
under :-

"28. ......Conceptually, revisional jurisdiction is a part of appellate jurisdiction but it is not

vice versa. Both, appellate jurisdiction and revisional jurisdiction are creatures of statutes.
No party to the proceeding has an inherent right of appeal or revision. An appeal is
continuation of suit or original proceedings, as the case may be. The power of the appellate
court is coextensive with that of the trial court. Ordinarily, appellate jurisdiction involves
rehearing on facts and law but such jurisdiction may be limited by the statute itself that
provides for the appellate jurisdiction. On the other hand, revisional jurisdiction, though, is
a part of appellate jurisdiction but ordinarily it cannot be equated with that of a full-fledged
appeal. In other words, revision is not continuation of suit or of original proceeding. When
the aid of Revisional Court is invoked on the revisional side, it can interfere within the
permissible parameters provided in the statute. It goes without saying that if a revision is
provided against an order passed by the Tribunal/appellate authority, the decision of the
Revisional Court is the operative decision in law. In our view, as regards the extent of
appellate or revisional jurisdiction, much would, however, depend on the language
employed by the statute conferring appellate jurisdiction and revisional jurisdiction."

(emphasis supplied)

21. In the backdrop of the aforesaid exposition of the legal position, reverting to the aspect
of the extent of revisional jurisdiction of MRT under Section 76 of the Act of 1948, it is
imperative to note that the legislature has even not vested a general power of revision in
MRT. On the other hand, the revisional jurisdiction is restricted to correct what can
properly be termed as errors of law or substantial defect in procedure entailing miscarriage
of justice.

22. While construing the scope and extent of the revisional powers of the Tribunal under
Section 76 of the Act, in the case of Rahimatulla Rahiman Sarguru vs. Bapu Hari Mane
and another, 1979(4) SCC 391 1979 Indlaw SC 501 the Supreme Court has held that the
powers of revision entrusted to Maharashtra Revenue Tribunal under Section 76 of the
Bombay Tenancy and Agricultural Lands Act, are practically identical with the second
appellate power of the High Court under Section 100 of Code of Civil Procedure, before it
was amended by Act 104 of 1976.

23. In this context, reliance placed by Mr.Thorat, on the judgment of a learned Single
Judge of this Court, in the case of Rama Vithal Kalantre since deceased by his heirs and
LRs. Banabai Rama Kalantre & Ors. Vs. Pandurang Hindurao Patil 2005(2) Mh.L.J. 961,
appears well founded. In the said case, the Court observed as under :-

"4. Having considered rival submissions, I have no hesitation in accepting the submission
canvassed on behalf of the petitioners that the Tribunal has exceeded its revisional
jurisdiction as provided for under Section 76 of the Act. The scope of interference in
revisional jurisdiction is circumscribed by the rigours of Section 76 of the Act. The legal
position has been expounded in the case of Maruti Bala Raut (supra). In the present case,
the Tribunal has reappreciated the entire evidence on record to overturn the finding of fact
reached by the Appellate Authority. The revisional authority had interfered not because the
finding of fact recorded by the Appellate Authority was error apparent on the face of
record or was manifestly wrong; but on fair reading of the judgment of the Tribunal, the
approach of the Tribunal appears to be that since another view was possible, it would
prefer the view taken by the first authority. This is impermissible."

(emphasis supplied)

24. Mr.Pai, the learned counsel for the respondents attempted to salvage the position by
canvassing a submission that in the instant case, the Sub-Divisional Officer has passed
order under section 84 of the Act, against which no appeal is provided. If viewed in this
backdrop, the revisional jurisdiction against an order passed under section 84 of the Act, is
more or less akin to the appellate jurisdiction. Inviting the attention of the Court to clause
(c) of section 76(1), it was urged that, in the facts of the instant case, as the Sub-Divisional
Officer had entertained an application under section 84 of the Act, the learned Member,
MRT was justified in correcting an order passed by the Sub-Divisional Officer which was
contrary to the law.

25. To bolster up the aforesaid submission, reliance was placed on the following
observations of this Court in the case of Laxman @ Bhaiyya Pandurang Edke (died
through LRs.) Vs. Vishwanath Kashiba Chemte (Since died through LRs.) 2007(1) All MR
36 :
"8. A plain reading of the above provision would make it manifest that if the order passed
by the Collector is found to be contrary to the law then it can be interfered with by the
MRT. Secondly, where the Collector failed to determine some material issue of law then
also such revisional jurisdiction can be exercised by the Tribunal. The MRT would be
within its legal bounds to interfere with the order of the Collector if such order is found to
be perverse or that some material facts have not been considered by the Collector."

(emphasis supplied)

26. I am afraid to accede to the aforesaid submission, which profess to enlarge the scope of
revisional jurisdiction, based on the premise of non-availability of an appeal against the
order passed under section 84 of the Act. The plain reading of section 76 of the Act
(extracted above), does not permit such a distinction to be made on the basis of the order
being appealable or otherwise.

27. The learned Member, MRT, in the case at hand, clearly, exceeded the revisional
jurisdiction in overturning the finding of fact recorded by the Sub-Divisional Officer by,
firstly, placing reliance upon a statement of the petitioner No.1 in a proceedings which had
concluded, and, secondly, totally ignoring the fact that the order passed by the ALT that
the original tenant was in possession of the suit lands on the Tiller's day, which had
attained finality.

28. The learned Member, MRT, seems to have committed a grave error in recording a
finding that the claim of the landlord that the original tenant had voluntarily surrendered
the possession of the suit land is reasonable and appropriate and, on the strength thereof,
interfering with the order of restoration of possession. In the process, the learned Member,
MRT, completely lost sight of the fact that the Act, 1948 frowns upon the divesting the
tenant of the possession of the agricultural land otherwise than in accordance with the
provisions contained in the Act, 1948. It would be suffice to note that section 15 of the Act,
1948 specifically addresses the anxiety of the Legislature in ensuring that the tenant is not
dispossessed of the land on the spacious plea that the tenant voluntarily surrendered the
land. The proviso to section 15(1), ordains in emphatic terms that the voluntarily surrender
by the tenant shall be in writing, and verified before the Mamlatdar in the prescribed
manner. Conversely, section 29(2) injuncts the landlord from obtaining possession of the
land held by the tenant except under an order of the Mamlatdar. Evidently, it is not the
claim of the landlord that, in the case at hand, the tenant had surrendered the possession of
the suit lands in conformity with, and observance of, the provisions contained in sections
15 and 29 of the Act, 1948.

29. A useful reference in this context can be made to a judgment of a three-Judge Bench of
the Supreme Court in the case of Babu Parasu Kaikadi (Dead) By LRs. Vs. Babu (Dead)
through LRs. (2004) 1 SCC 681 2003 Indlaw SC 1124. In the said case, the jural
relationship between the parties thereto as the landlord and tenants was not disputed. It was
also not disputed that the tenants therein had voluntarily surrendered the land to the
landlord; however, the said surrender was not in terms of sections 15 and 29 of the Act.
The Supreme Court, in the light of the aforesaid facts, considered the question,"whether
the voluntary surrender which is not in terms of sections 15 and 29 is a valid one?" After
adverting to the provisions contained in sections 15 and 29 of the Act, 1948, the Supreme
Court expounded the legal position as under :-

"5. The said Act, therefore, contemplates termination of tenancy by surrender thereof; and
consequent taking over possession by the landlord. How such termination of tenancy could
take place is provided for in Section 15 of the Act in terms whereof inter-alia a surrender
of the tenancy becomes a legal one only when such surrender is in writing and verified
before the Mamlatdar in the prescribed manner. For the said purpose the Mamlatdar is also
required to hold an enquiry. It is not in dispute that purported surrender made by the
predecessor-in-interest in favour of the respondents herein was although considered to be
voluntary but the same did not satisfy the very legal requirement, contained in Section 15
of the Act.

6. Section 29 of the Act, as noticed hereinbefore, postulates taking over of possession by

the landlord from the tenant only in accordance with procedure prescribed therefor. In the
event, the surrender made by the predecessor-in-interest of the appellant in favour of the
respondent is found to be invalid; the possession thereof obtained by the later pursuant to
or in furtherance thereof shall also be invalid. In such an event, although the landlord takes
a physical possession of the land, the right to possess them same remains with the tenant.
He could recover possession of the said land in accordance with law. The said Act is a
beneficent statute. It should be construed in favour of the tenant and against the landlord.
The protection given to the tenant in terms of the said Act must be given full effect. So
construed, the expression possession' would also include right of possession. The view
which we have taken is fortified by the decisions of this Court in Ramchandra Keshav
Adke (dead) by Lrs & Ors. v, Govind Joti Chavare & Ors., [1975] 1 SCC 559 1975 Indlaw
SC 414; Bhagwant Pundalik & Anr. v. Kishan Ganpat Bharaskal & Ors., [1971] 1 SCC 15
1970 Indlaw SC 302 and in Abdul Ajij Shaikh Jumma & Anr. v. Dashrath Indas Nhavi &
Ors., AIR (1987) SC 1626 and thus the consistent view had been that the surrender by the
tenant for being legal must be in conformity with the provisions contained in Sections 15
and 29 of the Act."

(emphasis supplied)

30. In the backdrop of the aforesaid clear and explicit enunciation of the legal position, and
the express mandate of the provisions contained in section 15 and 29 of the Act, 1948, the
learned Member, MRT was not at all justified in recording the finding on the basis of a
lame claim of voluntary surrender of the suit lands by the original tenant, without anything
more. It is more so for the reason that the tenant has been claiming that the landlord
unlawfully dispossessed him of the suit lands.

31. This propels me to the aspect of the tenability of the proceedings under section 84 of
the Act, 1948 for restoration of the possession of the suit lands. It bears repetition to note
that the landlord obtained a certificate under section 88-C of the Act, 1948 on 10th July
1962. The landlord, concededly, did not terminate the tenancy under section 33-B of the
Act, followed by an application for possession of the land within the stipulated period. On
the contrary, the application filed by the landlord seeking a negative declaration under
section 70(b) of the Act came to be dismissed by the ALT. In these circumstances, could
the tenant resort to the provisions contained in section 84 of the Act, 1948, alleging
dispossession from the suit land at the hands of the certified landlord otherwise than in
accordance with the provisions of the Act, 1948?

32. Unfortunately, the learned Member, MRT did not advert to this crucial question. The
validity of the order passed by the Sub-Divisional Officer could have been lawfully
examined by the MRT, on this count.

33. Shri Pai, the learned counsel for the respondents placed a strong reliance upon a three-
Judge Bench judgment of the Supreme Court in the case of Vallabbhai Nathabhai Vs. Bai
Jivi & Ors. AIR 1969 SC 1190 1969 Indlaw SC 415, wherein the distinction between the
provisions contained in sections 29 and 84 of the Act, was illuminatingly postulated. It
was, inter-alia, observed that in the case of a surrender which is not valid and binding on
the tenant there is no termination of tenancy, and, therefore, the landlord is not entitled to
retain the land even though possession thereof has been handed over to him or has been
voluntarily taken by him. The position in such a case is that the tenant has a right to apply
to the Mamlatdar for restoration of possession to him claiming that there has been no
termination of tenancy, that his possession continues to be protected by the provisions of
the Act and that, therefore, possession should be restored to him. Such an application lies
under Section 29(1) and, when so made, it becomes the duty of the Mamlatdar under
Section 70, Clause (n) read with Section 29(1) to put the tenant in possession of the land in
question "under this Act". In such a case the tenant is claiming possession under the
provisions of the Act and not on the strength of his own title, as when he applies for
possession, against a trespasser.

34. The Supreme Court considered a further question as to whether a tenant who has a
remedy under Section 29 (1) can still apply to the Collector under Section 84. In other
words, whether the Legislature has provided alternative remedies under both the sections
to such a tenant, the Court answered the question observing, inter-alia, as under :-

"6. The words "any person unauthorisedly occupying or wrongfully in possession of any
land" in Section 84, no doubt, are words of wide import and would include a landlord who
is in unauthorised occupation or is wrongfully in possession. A landlord who under an
invalid surrender is in possession of the land is, no doubt, a person in unauthorised
occupation or is wrongfully in possession. But then Section 84 in express terms limits its
application to three types of cases only, namely of a person unauthorisedly occupying or
Wrongfully in possession of the land (a) the transfer or acquisition of which etc. is invalid
under the Act, or (b) the management of which has been assumed under the Act, or (c) to
the use and occupation of which he is not entitled under the provisions of the Act and the
said provisions do not provide for the eviction of such person.

7. ..................Clause (a) therefore, applies to transfers or acquisitions which are in breach

of the provisions of Ch. V and possession or occupation whereof has been obtained under
such invalid transfers or acquisitions. That being the position, the instant case would fall
only under Clause (c) and not under Clause (a) as contended by Mr. Bhandare, and
therefore, the condition that Section 84 would only apply to cases for which there is no
other remedy under any of the provisions of the Act must apply to the present case. This
condition shows that while giving drastic powers of summary eviction to an administrative
officer the legislature was careful to restrict this power firstly because the result otherwise
would be to deprive the person evicted under Section 84 of his remedy of appeal before the
Collector which he would have if the order were to be passed under Section 29 (1) and
secondly, because it would enable a tenant to by-pass a judicial inquiry by the Mamlatdar
under Section 29 (1) by directly applying to the Collector under Section 84. Such a result
could not have been intended by the legislature. Therefore, the contention that Sections 29
(1) and 84 provide alternative remedies and a choice to the tenant cannot possibly be
correct."

(emphasis supplied)

35. Per contra, Mr.Thorat, the learned counsel for the petitioners urged that the provisions
contained in section 29 do not govern a case wherein an erstwhile tenant becomes a
deemed purchaser on Tiller's day. In case of dispossession of such a tenant an application
under section 84 of the Act, is tenable. Since the jural relationship between the landlord
and tenant ceases, the only remedy available to such tenant is to invoke the provisions
contained in section 84 of the Act, submitted Mr. Thorat.

36. In order to lend support to this submission, Mr.Thorat banked upon the judgments of
this Court in the cases of Vithoba Ram Rahane & Anr. Vs. Bhalchandra Sadashiv Joshi
since deceased by heir & Others. 1993 Mh. L.J. 419, Shankar Savala Gurav Vs. Bala
Govinda Patil 2003(Supp, 2) Bom. C.R.57, and Maruti Ramaji Patil Vs. Babu Dhondi
Mohite & Ors. 2006(4) Bom. C.R. 498 2006 Indlaw MUM 1275.

37. As observed earlier, the questions as to whether the jural relationship between the
deceased landlord and the deceased tenant came to an end on the Tiller's day and the tenant
could have invoked the powers of the Collector under section 84 of the Act on the premise
that he was not claiming under the provisions of the Act, have not been examined by the
learned Member, MRT. The consequences of grant of the certificate under section 88-C
and non-termination of tenancy under section 33-B of the Act were also not adverted to.
These issues constituted the core controversy. On the contrary, instead of posing unto
himself the pertinent questions which arose for consideration, the learned Member, MRT
proceeded to decide the matter by delving into factual aspects.

38. The aforesaid circumstances cumulatively dissuade this Court from examining the
aforesaid issues, for the first time, in exercise of extraordinary jurisdiction under Article
227 of the Constitution of India.

39. I am conscious of the time-lag. However, in view of the perfunctory manner in which
the learned Member, MRT has rendered the impugned order, there is no other go but to
remit the matter back to the learned Member, MRT for a fresh consideration. It would,
therefore, be necessary to remit the matter to MRT for a fresh consideration and decision,
firstly, on the application for condonation of delay and, thereafter, in the event the delay is
condoned, on the merits of the matter, in the light of aforesaid observations.

40. For the foregoing reasons, the petition deserves to be partly allowed. Hence, I pass the
following order :-

(i) The petition stands partly allowed.

(ii) The impugned order dated 20th October 1994 passed by the learned Member, MRT
stands quashed and set aside.

(iii) The revision application No. MRT.NS.VI.1/91, and the application for condonation of
delay stand restored to the file of MRT, Pune.

(iv) The learned Member, MRT shall decide afresh, firstly, the application for condonation
of delay in preferring the revision application, and, in the event the delay is condoned,
decide the revision application on merits, after providing an opportunity of hearing to the
concerned parties, as expeditiously as possible and preferably within a period of six
months from the date fixed for the appearance of the parties before MRT.

(v) Parties shall appear before the MRT, Pune on 16th September 2019 and it shall not be
necessary to issue a fresh notice to the parties for appearance before the MRT.

(vi) Record and proceedings be sent back to MRT, Pune forthwith.

(vii) Rule made absolute in the aforesaid terms.

Petition partly allowed

BIBILIOGRAPHY:

BOOKS:

1.The Sale Of Goods Act Pollock & Mulla 10th edition lexis nexis

2.Idian Contract Act Pollock & Mulla 7h edition lexis nexis

E-SOURCES

1.westlawindia.com.

2.https://www.scconline.com/

3.https://indiankanoon.org/