P L D 1960 (W (PLP)

QADEERUDDIN AHMAD, J.‑The facts from which this appeal bas arisen are that 3,563 maunds 24 seers of wheat was sold by the Government on 15‑8‑50 by public auction and the sale was sanctioned in favour of the respondent who was the highest bidder. He had offered Rs. 6‑8‑3 per maund (See Exh, D. 8). The relevant terms (Exh. D.‑2) of the sale were as follows:

Term No. 4.‑The successful bidder shall pay 25% of the price at the close of the auction and the balance by the payment of the value of as much quantity as is delivered to him. The money paid in advance shall be adjusted against the quantity lastly delivered to him. Term No. 5.‑The successful bidder shall make arrangements immediately after the auction to weigh the wheat, to complete the weighment and to pack the wheat in his own bags within a week, the auction being subject to the sanction of tie Officer Incharge Colonization Operations, Haveli Project, Multan, the delivery of the wheat shall not commence until the sanction is granted. Term No. 7.‑If the purchaser neglects to weigh the goods within the time allowed, he shall .be responsible for losses of all types occasioned by the delivery and the money paid by him in advance shall be forfeited. Term No. 8.‑All losses including those caused by rains, white ants, pilferage, etc. shall be borne by the purchaser after the auction. The respondent requested for two days' time for paying 25% of the price owing to his inability to do so immediately after the auction and paid Rs. 6,000 on the 17th of August with the consent of the authorities. The E. A. C. O. who was the Officer Incharge Colonization Operations sanctioned the auction on the following day by his letter, Exh. D.

3. He included in the letter of sanction, a direction in violation of term No. 4 of the terms of the auction. The direction was as follows :‑

"The remaining amount should please be recovered at once before the produce is handed over to the purchaser and deposited into Government treasury within 5 days failing which the wheat will be re‑auctioned." A' copy of the letter (Exh. D. 3) was sent by him to the Additional Naib‑Tehsildar with the direction to‑

"get the weighment of wheat done in his presence." The Manager, a witness (P. W. 6) in this case, has stated that he did not want to point out openly that the direction regarding payment was inconsistent with the terms of the auction. He wrote in reply (Exh. D. 6) that the letter (Exh. D. 3) was ambiguous and that the purchaser had been informed of the sanction but bad not visited the farm to take delivery of the wheat. After five days he again wrote (Exh. D. 4) to the E. A. C. O. Incharge Colonization Operations that weighment had commenced, but that the Additional Naib‑Tehsildar had not visited the farm and that the purchaser was not prepared to make "full payment in advance" but was willing to make payment in instalments , of Rs. 7,000 and to receive wheat 'of that value. The delivery of wheat was therefore withheld by him. The E. A. C. O. Incharge Colonization Operations wrote back (Exh. D. 5) and repeated his direction as follows:- "You should try to get the wheat weighed in the presence of Colony Naib‑Tehsildar, Abdul Hakim, forthwith. The price of the wheat should be recovered in full before its removal, failing which the advance deposited by the purchaser will be forfeited to Government and the wheat re‑auctioned." It is in evidence that the Additional Naib‑Tehsildar did not go to the farm at all. The respondent who .had paid Rs. 6,000 in advance made efforts to get delivery of the auction without having to pay the balance of the price in advance and ultimately succeeded in obtaining an order from the E. A. C. O. Incharge Colonization Operations, whereupon delivery of the wheat com menced on the 15th of September 1950. Upto the 20th of September 1950, 863 maunds 25 seers of wheat was lifted by the respondent against the payment of proportionate price.

2. The Additional Naib‑Tahsildar (D. W. 1) has stated that he had earlier informed the respondent vide his letter, (Exh. D. 7) dated 2‑9‑1950 that he could remove the wheat on payment of the price in terms of the auction. The suggestion is that there was delay in lifting the wheat but the witness has not been believed by the trial Court. I agree with the trial Court. The respondent (P. W. 10) has stated in cross‑examination that the Manager of the farm did not allow him to remove the wheat after the 20th of September 1950, that he could not complain against his conduct to anybody because no officer was present at the farm ; that the Manager had told him that the staff was proceeding on Id holidays and that delivery of the rest of the wheat could be given after the Id. He has further stated that on the next day of the Id, that is to say, on the 24th of September 1950, he went to the farm but the wheat was not delivered to him and he was told that there was imminent danger of flood sweeping down. 'On the 26th of September 1950, the flood swept away the major part of the wheat. 396 maunds 30 seers of wheat only was left behind at the farm. The Record Keeper (P. W. 1) has stated that out of this quantity 355 maunds 20 seers of wheat was in a fairly good state. It was distributed by the Government among the cultivators and the rest weighing 30 maunds 10 seers that was damaged, was used as fodder for cattle. The documents which prove these figures are Exhs P. W. 1/1 and P. W. 1/2,

3. The Government came to the conclusion that the respondent was responsible for the loss of the price of the undelivered wheat, including the quantity of the wheat that was appropriated by it (See paragraph 6 of the written statement). The E. A. C. O. Incharge Colonization Operations therefore wrote (Exh. P: W. 4/1) to the Tehsildar to recover from the responder; Rs. 11,619‑1‑6 as arrears of land revenue. In consequence the respondent served a notice Exh. P. 3. on the Government in terms of section 80, Civil Procedure Code, and institutes the suit from which this appeal has arisen, for two declarations, namely that the respondent plaintiff was not liable to pay that amount claimed by the Government and that the amount could not legally be recovered as arrears of land revenue ; for a permanent injunction restraining the Government from recover ing the amount claimed by it and for the recovery of Rs. 9,851‑9‑0 from the Government. Out of this amount, Rs.3,851‑9‑0 were claimed as damages for breach of the contract alleged to have been committed by the Government and Rs. 6,000 were claimed as refund of the money that Was paid by him in advance. The basis of the claim was that the Government had obstruct ed the performance of the contract and refused to give delivery of the wheat after the 20th of September 1950. The Government denied the allegations and made counter allegations which mainly were that the respondent‑plaintiff was unable to pay for the wheat and take its delivery in time ; that the amount claimed by the Government could be recovered as arrears of land revenue and that the respondent was not entitled to any relief.

4. Seven issues were struck by the trial Court on the pleadings of the parties and were decided in favour of the respondent‑plaintiff excepting that he was not held to be entitled to recover damages from the Government because the flood was held to have made the performance of the contract impossible and the Government was held to have had no control over the flood. The trial Court also held inter alia that the property in the wheat had not passed to the buyer (respondent‑plaintiff) and that the Government had obstructed him in the removal of the wheat. The suit was decreed for the refund of Rs. 6,000 the two declarations that were asked for were granted and the Government was permanently restrained from realising the amount claimed by it. The Government has preferred this First Appeal against the judgment of the trial Court.

5. The Advocate‑General appearing for the Government conceded that all issues except two were decided correctly. The two issues which were discussed by him are:‑

(3) Whether the plaintiff is liable to pay Rs. 11,619‑1‑6 as damages or price of the wheat which was auctioned on 15th August 1950 ? O. D. (Onus of proof objected to). (5) Whether the plaintiff is entitled to recover a sum of Rs. 6,000 paid by him in advance to the defendant ? O. P. His main contentions were that the respondent had committed the breach of the contract before the flood caused the loss and that the loss was in any case of the respondent because the property in the wheat had passed to him in terms of the sale. On either ground he was liable to pay the price of the undelivered wheat to the Government. Thirdly, the respondent had accepted the risk of the loss by agreement and, therefore, the loss caused to the seller by the flood was the loss of the buyer.

6. The first contention does not appear to be correct because the respondent could not remove the wheat without paying 25 per cent. of the total price in advance. The advance payment was made with the consent of the authorities on the 17th of August 1950 and on the 18th of August 1950, a direction was issued by the E. A. C. O. in violation of the terms of the contract. It was repeated and remained in force until, or near about, the 15th of September 1950. Some of the goods were removed between the latter date and the 20th of September. The flood came on the 26th of September. The breach of the contract could, if at all, therefore, be committed by the respon dent, during five days, that is between the 21st of September 1950, and the 25th of September 1950. The Id and the flood were sufficient excuses for 5 days' delay in removing the wheat if the respondent was not obstructed in removing the wheat during those days. The respondent has stated that he was not allowed to remove it during those days and the trial Court has generally believed him in this respect. I do not feel in the least surprised that the staff and officers of the Government did not co‑operate with the respondent at that time. Their co‑opera tion was such that the Additional Naib‑Tahsildar did not visit the farm despite the directions to him to do so. Moreover, as pointed out by the trial Court, there was no time‑limit on the removal of the wheat from the farm and for the payment of price. Further, there was no unreasonable delay in the performance of the contract by the respondent if he did not take delivery of the wheat for five days and did not pay the price for it.

7. The respondent had not weighed and bagged the wheat within a week after the auction though he was requested to do so by term No. 5 of the auction, but the Government waived its objection to it by its conduct. Term No. 7 also lost its effect on that account.

8. The second contention of the Advocate‑General gets support from the statutory presumption deducible from section 20 of the Sale of Goods Act, 1930. The section is as follows:-- "Where there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment of the price or the time of delivery of the goods, or both, is postponed." It is necessary for the application of this section that a contract for sale be unconditional and the sale be of specific, goods in a deliverable state, but the time of payment of the price and of delivery of the goods are not essential factors for determining whether the property in the goods has passed or not. Sections 20 to 24 of the Act are, however, rules for ascertaining the intention of the parties. The overriding section is section 19 of the Act. Mr. Said Akbar has relied on it. It is as follows :‑-- "19. (1) Where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. (2) For the purpose of ascertaining the intention of the parties regard shall be had to the terms of the contract, the conduct of the parties and the circumstances of the case. (3) Unless a different intention appears, the rules contained in sections 20 to 24 are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer".

9. Mr. Said Akbar for the respondent, contended that the sale was conditional, and that the property in the wheat had not passed in terms of subsection (2) of section 19 of the Act. He argued that under term No. 4 of the terms of the sale it was a "cash sale" which meant that the transaction was conditional on payment of the price. Moreover, it was a conditional sale because, under term No. 5, the transaction was subject to the sanction of an Officer of the appellant.

10. The condition of sanction does not make much difference in this case because the required sanction was granted three days after the auction. The expression "cash sale" too is not of much significance in our law. It catches attention merely because of antiquated associations with it that linger on. The early conception of sale was that property did not pass until the price was paid but in modern law there is a presumption in terms of section 20 of the Sale of Goods Act, 1930, that the property passes without payment of the price. As pointed out by Williston in volume (2) of his book Sales in section 341, that the expression‑ " . may mean (1) that he (the seller) refuses to part with the possession of the goods until the price is paid, but does not decline to transfer title; or, it may mean (2) that he declines to transfer title, but will or does transfer possession ; or it may mean (3) that he declines to transfer either title or right of possession until he is paid". The second type only is a conditional sale, and we have to begin by raising a presumption against such a sale.

11. Term No. 8 of the present sale too has a bearing on this discussion, for it is possible to argue that assumption of the risk by the buyer indicated that the property in the wheat was in the buyer, because no buyer would ordinarily assume such a risk in respect of the seller's property. The contrary view can be that the existence of an agreement by which the risk was assumed by the buyer signified that apart from the assumption of the risk there was no such risk of the buyer ; "Else why introduce a provision totally unnecessary T" Both arguments have force. As pointed out by Williston in section 302, Volume (2), the former applies more suitably where agreements are short and were drawn by untrained or half informed parties ; and the latter when they are elaborate and were prepared on legal or knowledgeable advice. I am inclined to think that in this case the latter view is more suitably applicable.

12. In this view I am supported by the conduct of the Officers of the appellant. They had assumed that the Govern ment had retained proprietary rights in the wheat. This is why they appropriated 396 maunds 30 seers of the wheat that was not swept away by the flood.

13. The conduct of the parties and the circumstances of the case lead me to conclude that the property in the wheat had not passed to the respondent. The terms of the contract were neutral in this respect.

14. I may note here a subsidiary argument advanced by the learned Advocate‑General that the appellant had retained possession of the wheat in exercise of the seller's lien and not because it was a conditional sale or the seller had continued to be the owner of the wheat after the auction. I have found that the property in the wheat remained in the seller. It follows, therefore, that the possession of the appellant was not in exercise of the seller's lien but in virtue of its ownership.

15. The third argument of the Advocate‑General that; irrespective of who was the owner of the wheat, the risk of any loss suffered in any shape or form by the seller had been contractually taken over by the respondent (term No. 8) was rightly not controverted by Mr. Said Akbar, because ownership can be separated from the risk and the risk can be assumed by agreement by the purchaser so as to relieve the seller of the consequences of any loss.

16. Mr. Said Akbar sought to meet the argument of the Advocate‑General by advancing a counter argument that the wheat was in the custody of the appellant and that, therefore, the appellant was responsible to the respondent for its safety as a bailee. This plea was not raised before the trial Court, just as the opposite plea was not raised that the respondent was to bear the loss in virtue of his undertaking to do so. There are no references to them in the judgment of the trial Court. The evidence shows that Shah Din (P. W. 6), a witness of the respondent, was cross‑examined on behalf of the appellant to prove that the appellant bad no control over the flood and that it was not expected to reach the farm where the wheat was stored. The witness has stated that for these reasons the appellant could not save the wheat from the flood. Obviously, the object behind the cross‑examination was to establish the plea of force majeure which succeeded and the claim of the respondent for damages was disallowed. That was a distinctly different plea from the plea now raised by Mr. Said Akbar as a counter to the plea of the Advocate‑General. These two contentions were not in the minds of the parties at the time of the trial before the lower Court.

17. The contention now raised by the learned Advocate -General can be substantiated on the basis of the terms of the agreement without additional evidence. Mr. Said Akbar drew inference from the facts and Argued in support of his stand that the wheat was lying uncovered and unprotected in an open field. Moreover, the statement of the respondent made in cross‑examina tion proved that the threat of the flood was imminent to the know ledge of the officers and agents of the appellant. If the appellant did not take steps to save the wheat in the hope that the flood would not reach the site where the wheat was, the responsibility for this negligence was on the appellant and was adequate to set off the responsibility accepted by the respondent under the contract. I agree with the Advocate‑General that more detailed evidence of negligence ought to have been produced but think that such evidence could be expected to be produced if the two pleas, which have been raised now; were taken in the lower Court. The trial in the lower Court proceeded on pleadings which mainly contained allegations and counter‑allegations that the breach of the contract had been committed by the seller or the buyer. The prominent effects of the contract which have been emphasised now were not in issue. The judgment shows that a contention, was raised at the time of the arguments that the property in the wheat had passed to the buyer. Strictly speaking, this plea too ought to have been raised properly and an issue ought to have been struck on it because the conduct of the parties was a necessary part of it and needed proof. If precise issues were framed, or evidence was led on the issues that were framed in view of the pleadings of the parties, then the contention that the property had passed to the buyer could not be decided at the time of the arguments. It was, let me say, a chance that there happened to be some evidence on the record relevant to this contention.

18. The question now is whether the two new contentions now raised should be disallowed, or decided on the evidence that is already on the record, or the case should be remanded for recording further evidence on them, or on one of them. Learned counsel for the parties have argued them at considerable length. It will not be proper to disallow them now. Moreover, I am averse to remanding this case because the claims of the parties relate to a transaction which took place in 1950.

19. Against this background, I am inclined to excuse the absence of detailed evidence of negligence and to conclude that the danger was in the knowledge of the appellant but it remained inactive in the hope that it would be obviated by chance or with a little good luck. It is thus liable for negligence. I find no justification for the appellant's complacence. Its liability for negligence as a bailee has counter‑balanced the contractual liability of the respondent. Both liabilities, it is to be noted, relate to the same adversity, namely, the flood. The contentions raised on behalf of the appellant fail and the conclusion is that issues No. 3 and 5 were correctly decided by the trial Court. The appeal is dismissed with costs. K. B. A. Appeal dismissed.