Monjula Bose, J.
1. The plaintiff carries on the business of jewellers and watch makers under the name and style of Arlington & Co. as the sole proprietor thereof and in this suit claims to be the absolute owner of 6 diamond rings and 21 watches which were seized by the Customs Authorities on May 18 and 19, 1956 in the course of a search conducted at the residence of Ramnath Bajoria the defendant No. 6. The plaintiff alleges that it had made over the said articles to the defendant No. 6, for inspection between April 3, 1956 and May 10, 1956 and the said articles are liable to be returned to it. It is alleged that notices Under Section 80 of the Civil P.C. have been duly served on the defendants Nos. 1 to 5 being respectively the Union of India, the Customs and Income Tax Authorities. No relief is claimed against the defendant No. 6 who has died since the institution of this suit nor against his wife, the defendant No. 7.
2. The defendants Nos. 1 to 4 have filed a joint written statement. They deny that the plaintiff is the owner of the said articles. They also deny the validity or sufficiency of the notice Under Section 80 of the Civil P.C. and contend that the suit is not maintainable under the Sea Customs Act, 1878.
3. The defendant No. 5, the Income Tax Officer concerned has filed a separate written statement. He has alleged inter alia that a prohibitory order has been issued on the Customs Authorities restraining them from delivering the articles seized, as the same were under attachment for Incometax dues of the defendant No. 6.
4. The defendants Nos. 6 and 7 had filed separate written statements and it appears therefrom, neither claimed ownership to the said articles. The defendaut No. 7 did not appear at the hearing.
The following issues were raised and settled at the trial:-
1. Is the plaintiff the owner of the goods in suit If so, are the goods liable to be returned to the plaintiff as claimed in prayer 2 of the plaint ?
2. Is the suit maintainable in view of the provisions of the Sea Customs Act?
3. (a) Was the notice Under Section 80 of the Code of Civil Procedure duly served on the defendants Nos. 1 to 4 ?
(b) To what relief, if any is the plaintiff entitled ?
5. One Keshab Prosad Chamaria deposed in support of the plaintiff. He stated that he has been in the plaintiff's employment since 1950. The disputed articles were made over for inspection the defendant No. 6 in his presence. Four inspection notes recording the deposit were tendered as Exhibits 'A', 'B', 'C 'and 'D' respectively. Copies of the said inspection notes seized with the articles which are the subject matter of the suit were tendered as Exhibits F, G, K and I. He indentified the seized goods which were produced by the Joint Receiver as belonging to the plaintiff except one wrist watch. All the articles except the said wrist watch bore tags of Arlington & Co. He also indentified the four card board boxes in which the articles were kept as belonging to Arlington & Co. The watches had been duly imported by the plaintiff and/or Arlington & Co. from Switzerland. A Bill of Exchange and a Memo of the National Bank of India in connection with the said import were tendered as Exhibit 'L', a bill in respect of watches sold to Arlington & Co. by Exhibit 'J' is the bill of one E.C. Flury & Co. Switzerland in respect of certain watches sold. He stated that the defendant No. 6 was one of the Directors of the plaintiff at its incorporation. Articles belonging to the plaintiff used to be delivered to prospective and/or regular customers for inspection. The Directors also used to take goods on inspection. It was usual to allow customers with whom the plaintiff had good relationship to retain such goods for a longer period than that mentioned in the Inspection notes. On instructions of the defendant No. 6 some of the articles were made over to Biswanath Dalmia the cashier of the defendant No. 6 and he accordingly signed two of the inspection notes. The other two inspection notes were signed by the defendant No. 6 himself as he collected the articles personally from the plaintiff's show room. The defendant No. 6 was permitted to keep the articles for more than a month and being a Director no steps were taken to secure their return although the witness had orally requested him for return of the goods.
6. The only other witness for the plaintiff was its solicitor Debi Prosad Bagaria. It is his evidence that the defendants Nos. 1 to 5 were served with notices Under Section 80 of the Civil P. Code along with a copy of the plaint by registered post with acknowledgment due, Postal acknowledgments were received back from each of the defendants Nos. 1 to 5 but the same have been misplaced or lost. He produced entries in his cash book Exhibits 'U' to show that on May 14 and 15, 1957 registered letters were sent to the defendants Nos. 1 to 5.
7. For the defendants Nos. 1 to 4 one Sankar Prosad Ghosh was called as a witness. The search at the residence of the defendant No. 6 was conducted in his presence in May 1956. He proved the search and/or inventory list Exhibit 4' which was written and signed by one S.K. Sen. The defendant No. 6 signed the search list below the words 'signature of the owner of the articles seized'. He however admitted that the words 'signature of the owner of the goods seized' had been penned through. He had no personal knowledge as to who was the owner of the said articles. He admitted that S.K. Sen who prepared the search list would be the proper person to explain in what context the word 'owner' was used in the document. He admitted that the defendant No. 6 had stated that some of the articles seized belonged to Arlington & Co. whose tags statement of the defendant No. 6 was recorded in Exhibit 5.
8. Mr. A.K. Banerji learned Advocate for the defendants Nos. 1 to 4 submitted that the onus of proving ownership lay on the plaintiff which it failed to discharge. He contended that Exhibit '4' the search list, was signed by the defendant No. 6 as the owner of the seized goods. Even in the reply to the show cause notice (Exhibit 7) it was not mentioned that the plaintiff was the owner of the articles.
9. Relying on the inspection notes he contended that ownership in the said articles passed to the defendant No. 6 after three days, as no suit was filed agaimt the defendant No. 6 for payment of price or return of the goods. Under Section 24 of the Indian Sale of Goods Act property in goods sent on approval passed to the buyer on the following conditions :
'(a) When he signifies his approval or acceptance to the seller or does any other act adopting the transaction;
(b) If he does not signify his approval or acceptance to the seller but retains the goods without giving notice of rejection then, if a time has been fixed for the return of the goods, on the expiration of such time, and if no time has been fixed, on the expiration of a reasonable time.'
10. To show that the transaction amounted to a concluded sale and property passed when it was intended to pass he cited State of Madras v. Ramalingam & Co. reported in AIR 1956 Mad. 695, Rungta Sons Private Ltd. v. Owners, Masters & Parties interested in S.S. Edison Mariner reported in (1962) 66 Cal WN 1083 as also Ghasiram Agarawalla v. State reported in : AIR1967Cal568 (F.B.).
11. On the question of maintainability of this suit Mr. Banerjee contended that the Customs Act was a complete and self sufficient Code, prescribing its own procedure and remedy and providing for appeals and revision from the orders of the Customs Officers. No suit lay in respect thereof unless shown that the authorities concerned acted without jurisdiction or de hors the statute or mala fide or in violation of the principles of natural justice. In support of his contentions he cited a number of decisions beginning with Secretary of State v. Mark & Co. reported in AIR 1940 PC 105 followed by B.D. Gupta v. Union of India reported in and Haore Miller & Co. Ltd. v. Union of India reported in (1961) 65 Cal. WN 1206. Finally, Mr. Banerjee cited Firm Seth Radha Kishan (deceased)represented by Hari Kishan v. Administrator Municipal Committee, Ludhiana reported in : 2SCR273 and Tejman v. D.P. Anand reported in : AIR1965Cal517 .
12. The next limb or Mr. Banerjee's arguments was that the goods seized were liable to confiscation which was a remedy in rem against the goods seized and therefore the question of ownership was immaterial. For this proposition he cited Sewpujanrai Indrasanarai Ltd. v. Collector of Customs reported in : 1958CriLJ1355 and Pukhraj v. D.R. Kolhi reported in AIR 1962 SC 1959, the last was cited for the proposition that goods imported contrary to statutory restrictions were liable to be confiscated even if the person in possession was not concerned with the importation thereof and Under Section 178-A the onus was on the person in possession to prove that the goods seized were not smuggled goods. He also cited Babulal v. Collector of Customs reported in : 1983ECR1657D(SC) where the Supreme Court held that the question of ownership of goods was irrelevant in the context of procedure for confiscation, and the decision Maqbool Hussain v. State of Bombay reported in : 1983ECR1598D(SC) where the Supreme Court reiterated the same proposition.
13. Lastly, he cited Maharaj Narain Sheopuri v. Sashi Shekhereshwar reported in ILR 37 All. 313 : (AIR 1915 All. 197) on the authority whereof he submitted that the Court will not make a declaration Under Section 34 of the Specific Relief Act which any of the parties on its own right may set at naught.
14. On the validity and sufficiency of the Notice Under Section 80 of the Code of Civil Procedure, Mr. Banerjee submitted that the present suit was instituted before expiration of two months after the notice was served. The evidence on this point of the solicitor of the plaintiff should be disbelieved as the alleged acknowledgement slips were not disclosed in the plaintiff's affidavit of documents filed in 1963. If produced he contends they would show that the plaintiff's suit was premature.
15. Mr. Dhar, learned advocate for the Incometax Authorities adopted the arguments of Mr. Banerjee. He contended further that from Exhibits T, 'K', 'M', 'P', 'Q' and 'R, viz. the invoices, it was not possible to identify which watches were covered by the Inspection Notes Exhibits 'A'. 'B', 'C and 'D'. Therefore, it was not proved that the watches which were the subject matter of the suit were lawfully imported. He also submitted that it was highly improbable that 21 lady's wrist watches should be taken on inspection by a prospective buyer. He also drew the attention of the Court to the fact that the invoices were for the years 1947, 1948 and 1949 which again made it highly improbable that the said watches covered by the said invoices would be available with Arlington or Manton & Co. in 1956. He submitted further that the tags and the card board boxes of Arlington & Co. would be easily available to the defendant No. 6 a director of the company, and the discovery of the articles in the said boxes with tags attached would not necessarily prove the ownership of the plaintiff in the said articles. Lastly, he cited Nemai Charan v. Secretary of State reported in ILR 45 Cal. 496: (AIR 1918 Cal. 230) for the proposition that the onus to prove that the notice was properly served was entirely on the plaintiff. The acknowledgement slips not being produced it could not be said that the plaintiff filed this suit after the expiry of the requisite period from the service of the notice.
16. Mr. Ray, learned advocate for the plaintiff, has rightly contended that the evidence adduced on behalf of the plaintiff as to the ownership of the disputed articles have not been controverted. Neither the entrustment of the articles to the defendant No. 6 nor the latter's connection with the plaintiff has been challenged or disputed. Mere suggestion of an 'inside transaction' can be of no assistance to the defendants unless established. Mr. Ray submitted further that the inspection notes did not indicate that any contract had been concluded between the parties. In any event, the said Inspection notes did not constitute evidence of a contract of sale. He cited Weiner v. Gill, Some v. Smith reported in (1906) 2 KBD 574, the facts wherein were more or less similar to the facts of the present case. On the authority of the said decision he contended that it was clear from the Exhibits A, B, C, and D that the articles would remain the property of the plaintiff unless invoiced.
17. Mr. Ray next contended that if anything was seized without authority of law, it must be returned and in support of this proposition cited Collector, Central Excise, Allahabad v. Kasi Nath Jewellers, reported in : AIR1972All231 . He also cited Hamdard Dawakhana v. Union of India, reported in AIR I960 SC 554 and Wazir Chand v. State of Himachal Pradesh, reported in : 1954CriLJ1029 and contended that unless the Customs authorities could establish their right to retain the goods the same must be returned.
18. Mr. Ray lastly contended that in any event the court had the initial jurisdiction to determine if the Customs Authorities had jurisdiction to take possession of the disputed articles. In support of this proposition he cited In Re : Ripon (High Field) Housing Order 1938; White & Collins v. Minister of Health reported in (1939) 2 KB 838.
19. On the service of the notice Under Section 80 of the Civil Procedure Code, Mr. Ray submitted that the suit was filed on July 18, 1956 and if the notice had been served on or after May 18, 1956 the suit would have been bad. He submitted that the notices were proved to have been posted on the 14th and 15th May, 1956 and they ought to have reached the addresses at Delhi by May 17, 1956 in the usual course. Mere suggestion of the defendants that the notices were received on the 18th May, 1956 did not establish anything.
20. One of the questions in this suit is whether the same is maintainable or not. In my opinion, the suit as framed, is maintainable. Neither under the Sea Customs Act nor under the Incometax Act, can title of a property be determined. In this suit the plaintiff has sought a declaration as against the defendants that it is the owner of the disputed articles. This question can only be determined in a suit. The fact that the Customs authorities may ultimately confiscate the articles seized is of little importance. In any event no order of confiscation has been made up till now. It cannot be said that the question of ownership is immaterial or irrelevant as the articles if not confiscated must be returned to the plaintiff. The decisions cited on this aspect have no application as in none of the suits the question of the title was involved. Pendency of proceedings under the Customs Act cannot bar the jurisdiction of the Civil Court to determine a title to the goods.
21. Next to be considered is the question whether the suit has been filed prematurely i.e. before the expiry of two months from the service of the notice Under Section 80 of the Civil Procedure Code. This is strictly not in issue, as the defendants have not pleaded that the suit was filed prematurely. Not do they deny receipt of the notices issued. From the evidence adduced by the plaintiff it can be seen that letters were posted on the 14th and 15th May, 1967. The case of the plantiff is that in the normal course the letters must have reached the defendants by the 17th May, 1967. There is no evidence to the contrary. It is within the particular knowledge of the defendants as to when they received the notices but they chose not to give any evidence on the point. In the circumstances the case of the plaintiff must be accepted. The defendants have certainly withheld from the Court records to show when the notices were received and adverse inference should be drawn.
22. On the question of ownership of the seized articles adduced by the plaintiff against is uncontradicted and unchallenged. Such evidence consists of the oral evidence of Keshab Prasad Chamaria as also the statement made by the defendant No. 6 before the Customs authorities in May 1956 (Ext. 5) admitting the ownership of the plaintiff. The last is an admission against the interest of the defendant No. 6 deceased, and is admissible. The price tags and the card board boxes also support the ownership of the plaintiff.
23. The contention of the defendants that the property in the said goods passed to the defendant No. 6 cannot be substantiated from the evidence from the evidence on record. No sale has been proved and the inspection notes clearly show that till the goods would be invoiced they would remain the property of the plaintiff. In their written statements the defendants Nos. 6 and 7 have not claimed ownership in the said goods, which to my mind is also significant.
24. The signature of the defendant No. 6 written over the words 'owner of the goods seized' in the seizure list proves nothing. The words admittedly have been penned through and the person preparing the list did not come to the box and explain in what cicutnstances the signature was put in the document. For the reasons indicated above I hold that the plaintiff has established its ownership over the seized articles. Proceedings for confiscation of the said goods having been initiated by a show cause notice, it can be presumed that the proceedings will be continued thereafter in accordance with law. By reason of the aforesaid the plaintiff is not immediately entitled to return of the goods. I direct the Customs authorities however to conclude the pending proceedings, .expeditiously. If in the proceedings the goods are found to have been legally imported they must be returned to the plaintiff.
The issues are accordingly answered as follows :-
The first part of the issue No. 1 is answered in the affirmative.
The second part of the issue No. 1 is answered in the affirmative to the extent as indicated above.
Issues Nos. 2 and 3(a) are also answered in the affirmative.
25. There will be a decree declaring the plaintiff the owner of the articles seized. Subject to the result of the pending confiscation proceedings, the defendants are directed to return the goods to the plaintff who will be also entitled to the costs of this suit including costs reserved from the contesting defendants in equal shares. The Joint Receivers appointed are directed to collect the seized articles from the Registrar Original Side of this Court and to return the same to the custody of the defendants Nos. 3 and 4 from whose possession it was taken by them, so that the confiscation proceedings may be completed expeditiously. The Joint Receivers will also hand back the key of the box in which the seized articles are kept to the person from whom they took possession of the same. The Joint Receivers to be paid a further fee of 12 GMs. each and also all costs, charges and expenses, to be paid by the plaintiff in the first instance, and they shall thereafter stand discharged.