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Jute Distributors Vs. Sushil Kumar Gupta and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKolkata High Court
Decided On
Case NumberLetters Patent Appeal No. 6 of 1972
Judge
Reported inAIR1974Cal386,78CWN962
ActsContract Act, 1872 - Section 178; ;Forward Contracts (Regulation) Act, 1952 - Section 15(4); ;Sale of Goods Act, 1930 - Section 27; ;Code of Civil Procedure (CPC) , 1908 - Order 41, Rule 27
AppellantJute Distributors
RespondentSushil Kumar Gupta and ors.
Appellant AdvocateBankim Ch. Dutta and ;Partha Dutta, Advs.
Respondent AdvocateSovendra Nath Gagore, Adv.
DispositionAppeal dismissed
Cases ReferredIn Sumitra Debi v. Satvanarayan
Excerpt:
- bhattacharyya, j.1. this lettors patent appeal by the plaintiff is directed against the judgment and decree of chittatosh mukherjee, j., dismissing the plaintiff's appeal.2. the short point for decision in this appeal is whether defendant no. 1 acting in the ordinary course of business as a mercantile agent, transferred some shares to the plaintiff with the consent of its owner (defendant no. 3) and whether the plaintiff acted in rood faith and without notice of want of authority on the part of the seller.3. facts necessary for the purpose of determination of this appeal may briefly be stated.4. defendant no. 3 purchased 500-fully paid up ordinary shares of m/s. indian aluminium co. ltd., on or about april 9. 1964, through stock brokers m/s. onkar & sons, of which defendant no. 1 was the.....
Judgment:

Bhattacharyya, J.

1. This Lettors Patent Appeal by the plaintiff is directed against the judgment and decree of Chittatosh Mukherjee, J., dismissing the plaintiff's appeal.

2. The short Point for decision in this appeal is whether defendant No. 1 acting in the ordinary course of business as a mercantile agent, transferred some shares to the plaintiff with the consent of its owner (defendant No. 3) and whether the plaintiff acted in Rood faith and without notice of want of authority on the part of the seller.

3. Facts necessary for the purpose of determination of this appeal may briefly be stated.

4. Defendant No. 3 purchased 500-fully paid up ordinary shares of M/s. Indian Aluminium Co. Ltd., on or about April 9. 1964, through Stock Brokers M/s. Onkar & Sons, of which defendant No. 1 was the proprietor. The said shares were registered in the name of defendant No. 3 on June 9, 1964. After registration, the company (defendant No. 2) returned the share scrips to M/s. Onkar & Sons towards the latter part of June, 1964 and the shares were in possession of the said firm. In January 1965 the plaintiff advanced a sum of Rupees 1.20,000 to defendant No. 1 for the purpose of his business on the security of 500- fully paid-up ordinary shares of M/s. Indian Aluminium Co. Ltd. and certain other securities. The amount was to have been repaid by April 25, 1965 with interest, but has not been repaid by defendant No. 1.

5. The plaintiff alleges that it was agreed that in the event of defendant No. 1 failing to repay the said loan by the due date, the plaintiff would be entitled to get the above shares transfer-red in their name or in the name of their nominee and/or to realise the amount of the said loan or part thereof by the sale of the aforesaid shares the terms and conditions of the said loan transaction and the pledge of the shares were embodied in a writing, dated January 22, 1965. The plaintiff further aliened that as per expressed and/or implied term of the said agreement, aforesaid 500 shares vested in the plaintiff and the plaintiff became the owners thereof in case the defendant No, 1 failed to repay the stipulated amount within time. In pursuance of the aforesaid agreement, defendant No. 1 made over to the plaintiff the above share scrips and a duly executed blank transfer deed relating thereto and also made a representation to the plaintiff that he acquired the said shares along with the relative scrips and the blank transfer deed duly executed by defendant. No. 3 for valuable consideration and he had full power of disposition over the same. Relying upon such representation, the plaintiff was induced to advance the aforesaid amount. As the defendant failed to repay the amount within the stipulated date, plaintiff applied for registration of the aforesaid shares, in the name of their partner Sri Biswanath Khaitan and sent the share scrips and blank transfer deed duly filed in to defendant No. 2. who however, refused to have the shares registered in the name of the plaintiff, on the ground that the signature of defendant No. 3 appearing on the transfer deed did not tally with his specimen signature. Defendant No. 2 accordingly returned the share scrips and the transfer deed to the plaintiff. The plaintiff thereafter made a representation to defendant No. 1 to obtain a fresh transfer deed from defendant No. 3 but defendant No. 1 failed to comply. Plaintiff then requested defendant No. 3 through defendant No. 1 to execute a fresh transfer deed in respect of the said shares, but Defendant No. 3 wrongfully refused to execute a fresh transfer deed. The plaintiff thus contends that as defendant No. 1 was in possession of the shares with the consent of defendant No. 3, and had pledged the same with the plaintiff in the ordinary course of his business as a mercantile agent and as the plaintiff in good faith and without notice of any lack of authority on the part of defendant No. 1 lent and advanced the money, the transaction is valid and binding upon defendant No. 3 and defendant No. 3 is therefore, estopped and/or precluded from challenging or disputing the validity thereof.

6. Of the defendants, defendant No. 1 is the proprietor of the business carried on under name and style of M/s. Onkar and Sons; defendant No. 2 is Indian Aluminium Co. Ltd. and defendant No. 3 Jahangir Normasji is the registered owner of these 500 shares in dispute. The suit was contested by defendant No. 3 alone, the other two defendants did not appear or contest the suit. The defendant in a written statement denied that defendant No. 1 was ever or could be a mercantile agent as alleged or carried on such business under the name and style of M/s. Onkar and Sons. The defendant contended that on or about April, 1964, the defendant purchased 500 shares of M/s. Indian Aluminium Co. Ltd. through M/s. Onkar and Sons and the same were duly registered in his name. Defendant No. 1 represented to him that the shares would be delivered to him in due course and relying on the said representation, the defendant waited for the shares and had no knowledge that they were or would be dealt with otherwise by defendant No. 1. The defendant No. 1 never had any authority to transfer or pledge the said shares and no blank transfer deed was ever executed by the defendant. The contesting defendant categorically denied that defendant No. 1 with his consent disposed of the disputed shares in the ordinary course of business, as a mercantile agent or that the plaintiff acted in good faith and without notice of any want of authority on the part of Defendant No. 1. The defendant further denied that he executed any blank deed of transfer in respect of the said shares or is liable to render any account to the plaintiff.

7. The suit was tried by the Judge, 2nd Bench. City Civil Court Calcutta. The defendant No. 3 was examined on commission at Poona and the plaintiff examined one of their partners Mr. B. Khaitan as a witness. The learned Judge dismissed the suit, holding that the plaintiff failed to establish that defendant No. 1 pledged the shares as security or that he was in possession of the disputed shares and the blank transfer deed as a mercantile agent of defendant No. 3. As for the other part of the plaintiff's case, the learned Judge observed that the plaintiff gave a go-by to his case that defendant No. 1 had acquired the share scrips and the blank transfer deed for valuable consideration from defendant No. 3. Against this decision, the plaintiff appealed to this Court being appeal from Original Decree No. 344 of 1970. Chittatosh Mukherjee, J., who heard the appeal, dismissed the same, holding that the plaintiff had not acted in good faith and the sale was not made in the ordinary course of business of a mercantile agent. The learned Judge further found, that defendant No. 1 was not in possession of the shares with the consent of defendant No. 3. the owner thereof. Hence this appeal by the plaintiff.

8. Mr. Bankim Chandra Dutt, learned Advocate for the appellant contends that the learned Judge was in error in holding that the plaintiff had not acted in good faith or that the transfer was not made in the ordinary course of business of a mercantile agent acting as such or that defendant No. 1 was no1 in possession of the shares with the consent of defendant No. 3. Mr. Dutt also contends that he should be allowed to adduce additional evidence in this appeal in so far as the letter dated 22-1-1965 embodying the terms of the transaction and the blank transfer deed (now filled in) which could not be exhibited in the trial Court under circumstances beyond the control of the appellant. To that effect an application under Order 41. Rule 27 of the Code of Civil Procedure was filed in this Court. Mr. Dutt, has further taken exception to the admissibility of certain documents exhibited on behalf of the defendant.

9. The plaintiff's case is largely based on this blank transfer deed which is said to have been made over to him by defendant No. 1. This document if accepted as genuine, would go a long way to establish the plaintiff's contention in this case. Reliance was placed on behalf of the plaintiff on the proviso to Section 27 of the Sale of Goods Act which deals with sale by persons, who are not owners of the goods. The proviso to this section which is material for our purpose reads as follows:--

'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.

10. It would thus appear that the proviso to this section is only attracted where a mercantitle agent acting in the ordinary course of business of a mercantitle agent, is in possession of the Goods with the consent of the owner and the buyer acts in good faith and without notice of any want of authority on the part of such, agent. Where these conditions are satisfied, the seller can confer a good title on the buyer. It is not disputed that Onkar & Sons are regular share-dealers of a recognised stock exchange and would thus come within the definition of a mercantile agent described in Section 2(9) of the Sale of Goods Act. It is true that no such specific question was put to the defendant in his examination on commission but it is now admitted that defendant No. 1 was a stock broker and dealer in shares of limited companies and the defendant respondent also had other transaction through defendant No. 1. Defendant No. 3. however, disputed that he ever authorised defendant No. 1 to dispose of the disputed shares and denied having executed any blank transfer deed. He also denied that defendant No. 1 came to be in possession of the shares with his consent. Mr. Dutt has taken us through the evidence in this case as also the documents exhibited by both the parties. After careful consideration of the evidence adduced in this case, we see no reason to come to a different conclusion from that arrived at by the Courts below or to hold that defendant No. 1 was in possession of the shares with the consent of defendant No. 3, the owner thereof or the plaintiff acted in good faith and without notice of any want of authority on the part of the seller.

11. Before we proceed to give our reasons for our conclusion, we would like to dispose of the application filed by the appellant under Order 41. Rule 27 of the Code of Civil Procedure for production of additional evidence in this appeal. The application is opposed by defendant respondent, who affrmed an affidavit in opposition disclosing the circumstances under which the alleged letter and the blank transfer deed (now filled in) came to be produced before the Court. It is alleged that this blank transfer deed was produced for the first time on the date of trial but there is nothing on the record to indicate when or on which date this bank transfer deed was produced. There is no note in the order sheet nor is there any first on the record. Defendant No. 3 was examined at Poona on Commission and when the defendant's prayer for examination of himself on commission was being heard, it was represented to the Court that the plaintiff was apprehensive of losing custody of the scrios, if the same and the blank transfer deed were sent to Commissioner, Respondent was therefore unwilling to take any risk with regard to the removal of the same (vide Order No. 64, dated 22-5-1969). Consequently this document was not forwarded to the Commissioner at Poona. although the Commissioner's report, shows that the defendant was specifically asked to see the blank transfer deed and to deny or affirm his signature therein (Vide Interrogatory No. 17). The Commissioner reported that the document referred to in this interrogatory had not been sent to him along with the record of the proceeding and as such the witness was not able to answer the same, The witness however, volunteered to say that he did not sign any blank transfer deed relating to these 500-shares. It would thus appear that the defendant was not allowed to scrutinise the alleged blank transfer deed or to have his say with regard to the same, when he was examined on commission.

12. The defendant on the other hand appears to have made repeated attempts to have this document produced before the Court but without success. After the issues were framed on 25-1-68, defendant on 8-2-1968 applied under Order 11. Rule 12 of the Code of Civil Procedure for a direction on the plaintiff to discover his documents on oath (vide Order 38) and the plaintiff was directed to discover his documents on oath. After repeated adjournments plaintiff failed to discover the documents on oath, when on 18-5-1968 the defendant applied under Order 11, Rule 21 of the Code for dismissal of the suit for want of prosecution (vide Order 44). On the same day, the defendant also gave notice on the plaintiff's Advocate under Order 11. Rule 16 of the Code of Civil Procedure requiring him to produce for the defendant's inspection a number of documents, including original blank transfer deed relating to the said 500 shares and the letter dated 22-1-1965. In reply the plaintiff affirmed an affidavit on 31-5-1968 stating that he would rely on 11 items of documents including the original blank transfer deed and the letter dated 22-1-1965. On 4th February, 1969, the defendant applied before the Court for a direction on the plaintiff to produce in Court the original documents disclosed in the plaintiff's affidavit dated 31-5-1968 including the blank transfer deed and the original letter dated 22-1-65. This petition was heard on 10-3-1969 and the plaintiff was directed to file the original documents as described in the petition by the next date which was fixed on 17-3-1969 (vide Order No. 56). The order was not complied with and we find the plaintiff taking a curious position before the Court on 22-5-1969 Meanwhile on 7th April. 1969, the defendant prayed before the Court for sending a number of documents to the Commissioner at Poona and one of the items in this schedule is the blank transfer deed in respect of 500 Indian Aluminium shares alleged to have been executed by defendant No. 3. When the matter was taken up by the Court on 22nd May 1969, the plaintiff was apprehensive of losing the custody of these documents and was unwilling to take any risk with regard to the same. No attempt was made at any stage of the suit to have the defendant's signature in the alleged blank transfer deed compared by an expert nor was any of the witnesses to the said deed attempted to be examined or cited in support of the plaintiff's case, although it was defendant's specific case that he never signed or executed any such form at any time. The alleged agreement dated 22nd January, 1969, was never produced by the plaintiff even though the plaintiff based his case on this writing.

13. It is therefore, clear that the plaintiff deliberately withheld these documents from being shown to the defendant for reasons, which are not far to seek. The purported signature of defendant No. 3 in the blank transfer deed dops not plainly tally with any of the signatures of the defendant in the written statement, power and deposition and as the document is not an exhibit on record, we refrain from making any further comments about its genuineness. It will be sufficient to point out that the plaintiff by his conduct has disentitled himself to any relief under Order 41, Rule 27 of the Code. The document was neither refused by the trial Court within the meaning of Clause (a) of Rule 27 (1) of Order 41 of the Code nor do we consider it necessary to admit it into evidence so as to enable us to pronounce judgment in this case. The appellant contends that the blank transfer deed as also the letter dated 22-1-1965 are necessary for the ends of justice for arriving at a correct decision in the facts of the case.

14. Having regard to the circumstances under which these documents were not produced in spite of repeated attempts by the defendant and specific directions by the Court, we are unable to grant the prayer of the plaintiff. To do so would be to put a premium on obduracy and contumacy.

15. The petition in our view should be rejected.

16. In the plaint the plaintiff's case was that he advanced to defendant No. 1 a sum of Rs. 1,20,000/- on the security of 500 duly paid ordinary shares of Indian Aluminium Co. Ltd. and certain other shares, which was made repayable on or before a certain date, failing which the plaintiff would be entitled to have the said shares transferred in its name and/or to realise the amount by sale of the aforesaid shares. These terms were reduced to writing in the form of a letter dated, January 22, 1965. In para. 6 of the plaint, the plaintiff alleged that the defendant No. 1 represented to it that he had acquired the shares along with the relevant scrips and the blank transfer deed duly executed by defendant No. 3 for valuable consideration and defendant No. 1 had full power of disposition over the same. Relying upon this representation, the plaintiff was induced to lend the aforesaid amount to defendant No. 1. This part of the plaintiff's case was given a go-by at the trial and the respondent (Plaintiff ?) sought to make out a case that defendant No. 1 acting as a mercantile agent, was in possession of shares with the consent of defendant No. 3 and the transfer made by such an agent, would be valid and binding on the owner if the purchaser acted bona fide and without notice of want of authority on the part of the seller. Chittatosh Mukherjee. J., pointed out the material discrepancy between the case pleaded by the plaintiff and the case made out at the trial. We have already discussed at length the circumstances under which the blank transfer deed came to be produced before the Court and the letter dated 22-1-1965 was withheld from it. These circumstances would amply justify a conclusion that the plaintiff acted mala fide in the matter.

17. It was clear from the manner in which the case was conducted before the trial Court that the plaintiff mainly relied upon the transaction through his bankers and the alleged debit memo of the United Commercial Bank, marked Ext. 3. Even if this position is accepted, it did not advance plaintiff's case, in the least. In fact, the witness examined on behalf of the plaintiff (P. W. 1) merely proved the signature of B. Kapoor, Assistant Accountant of United Commercial Bank on the debit memo (Ext. 3). This debit memo at best proves that a sum of Rs. 1,20,000/- was debited against plaintiff's Account in connection with certain transactions, including 500 disputed shares. Plaintiff's witness, B. Khaitan, however, stated in his cross-examination that they knew that the shares stood in the name of defendant No. 3 at the time, when they purchased them from defendant No. 1, but they did not ascertain if defendant No. 1 had any authority to make the transaction. The witness further stated that they had no necessity of making any enquiry and it was only after defendant No. 2 returned the shares that they requested defendant No. 3. This letter of defendant No. 2 refusing to register the shares was neither produced nor exhibited before the Court for reasons best known to the plaintiff. In cross-examination it was suggested on behalf of defendant No. 3 that they never referred the matter to the defendant. The plaintiff did not choose to produce any letter addressed to defendant No. 3. What is more, the witness even admitted that defendant No. 1 never represented to them that he way an agent of defendant No. 3. It is thus apparent that the plaintiff rushed to make the transaction without any enquiry whatsoever and even without ascertaining whether defendant No. 1 had authority to make the transfer. Having regard to the circumstances of the case, we have no hesitation in coming to the conclusion that the plaintiff entered into the transaction with notice of want of authority on the part of defendant No. 1.

18. Let us now examine if the shares in the instant case were left in the custody of defendant No. 1 with the consent of defendant No. 3. On this point both the Courts have found that defendant No. 1 was not in possession of the shares with the consent of defendant No. 3 the owner thereof. The defendant's specific case on this point was that he purchased the disputed shares through Onkar and Sons and the same were duly registered in his name. Defendant No. 1 was stated to have represented to him that defendant No. 2 would send the shares direct to him after registration was effected and the shares scrips will be delivered in due course. Defendant No. 3 relied on the said representation and acted on the same but never eave any authority to defendant No. 1 to transfer or pledge the shares at any time. In his evidence before the Commissioner, defendant No. 3 denied that he ever signed in any transfer deed or deliveced the same to defendant No. 1 in respect of the said shares and categorically asserted that he never authorised defendant No. 1 to sell, mortgage or dispose of the above mentioned shares. Against this categorical statement, the plaintiff did not produce any evidence whatsoever to show that the shares came into the possession of defendant No. 1 with the consent of defendant No. 3. Mr. Dutt drew our attention to the fact that the shares were registered on or about 9th June. 1964, and it was not until 13th October. 1965, that the defendant No. 3 enquired of defendant No. 2 as to the fate of the shares (Vide Ext. B). Mr. Dutt accordingly contends that this silence on the part of defendant No. 3 for over 15 months was really ominous and as the shares were allowed to remain in the custody of defendant No. 1, a mercantile agent, defendant No. 3's consent must, be presumed in the circumstances of the case.

19. It appears that defendant No. 2 replied to defendant No 3 by a letter dated October 22, 1965 (Ext. C) wherein it was stated that the shares in question were returned to M/s. Onkar and Sons on 24th June, 1964. after registration. Along with this letter we have to read the letter (Ext. 'A'-I) dated May 7, 1964, written by Onkar and Sons to defendant No. 3. In the said letter Onkar and Sons informed the defendant that they were requesting defendant No. 2 to send shares direct to defendant No. 3, after the transfer was effected. Defendant No. 3 in his examination stated that he asked defendant No. 1 to have the shares transferred in his name in the Registers of the Company and to return the scrips to him after registration. Thus it appears that Onkar and Sons or for the matter of that defendant No. 1 came into possession of these shares with the consent of defendant No. 3 but their authority did not extend any further. Defendant No. 3, a retired businessman, aged about 86 years and ordinarily resident in Poona, was certainly not very vigilant but that would not be sufficient to confer any authority on defendant No. 1 to dispose of the shares or to deal with them in the absence of any specific authority from defendant No. 3. Plaintiff has failed to establish any such authority on the part of defendant No. 3 in favour of defendant No. 1. We therefore, agree with Chittatosh Mukherjee, J., that, defendant No. 1 did not came into the possession of the shares with the consent of defendant No. 3, for the purpose of dealing with it.

20. Regarding the plaintiff's case that defendant No. 1 pledged the shares with the plaintiff in the ordinary course of his business as a mercantile agent. Mr. Dutt, relied upon Section 178 of the Indian Contract Act and contended that where a mercantile agent is in possession of the goods or documents of title to the goods under circumstances enumerated in Section 178 of the Indian Contract Act, a valid pledge so as to he binding on the true owner can be made by him and the pledge can be enforced even against the true owner who, was precluded from denying pledger's authority. Section 178 of the Contract Act deals with pledge by mercantile agent, whilst the proviso to Section 27 of the Sale of Goods Act deals with a sale by mercantile agent under identical conditions. Both sections provide that where the mercantile agent is in possession of the goods or the documents of the title to the floods with the consent of the owner, any sale or pledge made by him when acting in the ordinary course of business of a mercantile agent shall be as valid, as if he was expressly authorised provided the pawnee or the purchaser acts in good faith and did not have at the time of pledge or sale, notice that the agent had no authority to sell or pledge. We have already found that the defendant No. 1 was not in possession of the shares scrips with the consent of defendant No. 3. nor was defendant No. 1 in possession under such circumstances as the owner of the scrips would be precluded by his conduct from denying the pledgor's authority to do so. Reliance was placed by Mr. Dutta upon the following English decisions in support of his contention. Dearie v. Hall reported in (1824) 34 All ER (Reprint) p. 28; London Joint Stock Banks v. Simmons, (1892) AC 201); Oppenheimer v. Attenborough & Sons. (1907) 1 KB 510 and the appeal therefrom reported in (1908) I KB 221; Whitehom Bros v. Davison. (1911) 1 KB 463; Commonwealth Trust v. Akotey 1916 AC 72). It will however not be necessary for us to enter into or discuss these cases in view of our finding that the pledgee did not act in good faith or without notice of want of authority on the part of defendant No. 1. In Astley Industrial Trust Ltd. v. Miller, (1968) 2 All ER 36, it was held after a review of most of the earlier cases cited above, that it was now established that where a mercantile agent is entrusted with goods in some other capacity than that of a mercantile agent, he cannot sale or pledge these goods contrary to instructions. The entire scheme of the Factors Act 1889, was to afford adequate protection to persons, who bona fide entered into transactions with mercantile agent as defined in that Act. Section 2(1) of the Factors Act was more or less on identical terms with the proviso to Section 27 of the Sale of Goods Art and Section 178 of the Con-tract Act and this section deals both with sale, pledge or other disposition of goods by a mercantile agent. In the case of Felkes v. King, (19231 1 KB 282. meaning of consent was examined and it would appear that where the owner was tricked into giving possession of the goods or documents of title to property, the agent cannot be said to be in possession with the owner's consent. Almost same view was taken in Pearson v. Rose and Youth Ltd. reported in (1951) 1 KB 275. The authorities cited by Mr. Dutta, in the circumstances of the instant case cannot therefore assist him in any way.

21. Mr. Dutt also relied upon the case of Elaya Navar v. Krishna Pattar reported in AIR 1943 Mad 74 where it was held 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 valid pledge which he can enforce, but unless the pledgee at the time of deposit secures a deed of transfer which he can use in case of necessity or obtain one from his debtor at a later stage, his only remedy was by way of enforcement of his security. That was a case where the owner of the shares, deposited the shares with the transferee of a promissory note as security for payment, when the transferee demanded the amount due under the promissory note from the maker of it. This case in our view has no application to the facts of the instant case.

22. In the case of Central National Bank Ltd. v. United Industrial Bank, : [1954]1SCR391 at page 185 (para 10) Supreme Court held that where an innocent purchaser or pledgee obtained goods from the person in possession thereof whose possessory title is defeasible on the ground of fraud but has not actually been defeated at the time of the transfer, there was no reason why the rights of such innocent purchaser or pledgee should not be protected. Supreme Court went on to hold that it would be sufficient to enable the person in possession to create a title in favour of the purchaser or pledgee, so long as the right in the possessor or bailee is not determined. But that transfer is only protected where the purchaser is an innocent transferee for value without notice. We have already found that the purchaser in the instant case did not act bona fide in this matter or without notice of want of authority on the part of the seller.

23. In Sumitra Debi v. Satvanarayan, reported in : AIR1965Cal355 , this court in analysing the principles of law on which Sections 27 to 30 of the Sale of Goods Act wore founded, observed that where one of the two innocent parties must suffer from the fraud of the third, the loss should be borne by him who has enabled the third party to commit the fraud, if he has neglected some duty owing to the other or has done something which has in fact misled the other. That was a case where the plaintiff kept certain shares with respective blank transfer deeds in the possession of her father with full authority to deal with them. One 'D' came to be in possession of the shares with the consent of the father of the plaintiff and 'D' sold the shares to various persons, who were bona fide purchasers for value without notice of defect of D's title. On a suit being filed by the plaintiff, for declaration of her title to the shares and other reliefs, on the allegation that 'D' had committed theft, in respect of these shares and sold 'them to various persons, this Court found that the plaintiff had failed to establish that the shares were in fact entrusted to 'D' for the limited and specific purpose of getting them registered in the name of plaintiff and it could not therefore be said that the shares were not in juridical possession of 'D' and all the conditions to constitute estoppel by negligence or by representation on the part of the plaintiff were satisfied. Defendant No. 3 in the instant case, in our view cannot be said to be guilty of any such negligence as would estop him from asserting his claim to these shares. In view of our finding that the plaintiff entered into the transaction with notice of want of authority on the part of defendant No. 1 or that defendant No. 1 did not come into the possession of the shares with the consent of defendant No. 3. these decisions cited by Mr. Dutt are of little assistance to client.

24. On behalf of the respondent reliance was placed upon Section 15 of the Securities Contracts (Regulation) Act, 1956 which forbids the members of a recognised stock exchange from acting as a principal in certain circumstances. The original contract dated 9-4-1964 was duly proved by defendant No. 3 at the time of his examination on commission (vide Answer to Question 15 (c)). This original credit note has not however been made as exhibit in this case. Be that as it may, it is no longer disputed that defendant No. 1 as proprietor of M/s. Onkar & Sons was a member of a recognised Stock Exchange and in the facts of the case, it would also appear that he was acting as a principal in dealing with the shares of a person who was not a member of the association, without any written consent or authority on the part of that person. The contract must therefore be held not to have complied with the requirement of Section 15(4) of the Forward Contracts (Regulation) Act 1952. Such a contract, has been held by the Supreme Court in the case reported in : [1968]1SCR608 to be void.

25. For all these reasons discussed above, the appeal in our view must fail and is accordingly dismissed with costs to the contesting respondent. The application under Order 41 Rule 27 of the Code of Civil Procedure is rejected.

Gupta, J.

26. I agree.


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