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The ingredients were not even shown to have got so mixed up as to become inseparable. Ratio |
As already mentioned above, this is a case in which the term "Oriental Mixture" was nothing more than a name given by the appellant company itself to the goods which were in the State of Madhya Pradesh at the relevant time and sent from there specially in order to satisfy the specifications given in the contracts. Rati... |
The goods get mixed up in the process of unloading. Ratio |
The mere fact that the specifications in the contracts are satisfied when they get mixed up is not a good enough ground for holding that a new product has been manufactured. Ratio |
They could no more constitute a new commodity than parts of some machinery sent by its manufacturer to a purchaser outside a State, so that the buyer has to just fit in the various parts together, becomes a new commodity when the parts are fitted in. Ratio |
The mere fitting up of parts or a mixture of goods, without employing any mechanical or chemical process of manufacture, could not, we think, result in a new commod ity. Ratio |
We, therefore, answer the following six questions before the High Court as follows: Q. 1. Ratio |
Was the Tribunal right in holding that, although the assessment order was made after the Constitution of India came into force, Article 286 was thereby not contravened, because such order related to a period prior to 26.1.1950? (1) (1963) 14 S.T.C. 878. Ratio |
(2) (1959) 10 S.T.C. 500. 1015 Ans. Ratio |
Yes, The provisions of Article 286 were not contravened. Ratio |
Was the Tribunal right in holding that Explanation (II) to Section 2(g) as was origi nally embodied in the Sales Tax Act, 1947, got restored on the Statute book because of the unconstitutionality of the substituted Expla nation enacted in the Sales Tax (Amendment) Act, 1949 ? Ans. Ratio |
There is no question of restoration of unamended explanation (II) to Section 2(g) as the purported amendment itself did not take effect. Ratio |
Hence, the unamended provision stood as it was before the attempted amendment. Ratio |
The question framed rests on a misconception that there was something to be restored. Ratio |
As nothing was taken away, nothing was there to be restored. Ratio |
And, there was nothing added or substituted. Ratio |
Does the Tribunal 's decision not contra dict the true meaning of the language "sale of any goods which are actually in the Central Provinces and Berar at the time when the contract of sale as defined in that Act in respect thereof is made", as occuring in Explanation (II) to section 2(g) of the Sales Tax Act, with ref... |
This is a question of fact as to what contracts specify and whether those goods were taxed, on which the finding already recorded are enough to dispose it off against the assessee. Ratio |
In any case, was the Tribunal right in its interpretation, application and use of the provisions of original Explanation (II) to section 2(g) of the Sales Tax Act even as they were ? Ans. Ratio |
Was the Tribunal right in assuming the law to be that the existence of ingredients of ores in the taxing State in question, which were sufficient if and when mixed in the due proportion for yielding different varieties of standard mixtures contracted for by the over seas buyers, was in law enough to attract the tax ? A... |
There is no question of assuming any thing. Ratio |
It was only manganese ore of different grades which was unloaded at the port and gives the name of "Oriental Mixture" because the ingredients got mixed up automati cally in transportation and satisfied certain specifications. Ratio |
No new commodity was produced in this process. Ratio |
Was the Tribunal right in holding that the Sales Tax Authorities had found as a fact that the goods consisting of oriental mixture 1016 were in the Madhya Pradesh State when the contracts in respect of these goods were made ? Ans. Ratio |
Before we part with the case we may observe that the questions could have been much more lucidly and simply and less culmsily stated. Ratio |
The appeals of the assessee company against the decisions of the Full Bench are dismissed. RPC |
The appeals of the State of Maharashtra against the judgment of the Division Bench are allowed. RPC |
Parties will hear their own costs. RPC |
V.P.S. Appeals dismissed. RPC |
ivil Appeal No. 1252 of 1976. FAC |
Appeal by special Leave from the Judgment and Order dated 13 8 1975 of the Allahabad High Court in Second Appeal No. 179/ 75. FAC |
K. Gupta, for the Appellant. FAC |
S.T. Desai and R.B. Datar for the Respondent. FAC |
SHINGHAL, J. FAC |
This appeal, by special leave, is directed against the summary dismissal of defendant Piarey Lal 's second appeal on August 13, 1975. FAC |
As the leave has been limited to the question of interpretation of clauses (a) and (b) of section 30 of the U.P. Consolidation of Holdings Act, 1953, (hereinafter referred to as the Act), "for the pur pose of deciding whether the liability of the petitioner to specifically perform the contract of sale of the old hold i... |
916 Respondent Hori Lal raised the suit for specific per formance of an agreement dated March 6, 1966, for the sale of six plote of land measuring nine high and six biswas in village Hathiawali, Tehsil Gannaur. FAC |
It was alleged in the plaint that Rs. 3000/ were paid by the plaintiff Hori Lal in advance, and the balance of Rs. 2000/was to be paid at the time of the execution of the sale deed, within one year of the agreement. FAC |
It was also pleaded that as defendant Piarey Lal refused to execute the ' sale deed, the plaintiff was driven to the necessity of filing the suit for specific performance of the agreement for sale and, in the alterna tive, for the recovery of Rs. 3000/which had been paid as advance. FAC |
Defendant Piarey Lal denied the execution of the agreement for sale and the receipt of Rs. 3,000/ , and pleaded that as new plots had been allotted as a result of the consolidation of his holding under the Act, he could not perform the agreement for sale. FAC |
The trial court framed issues, inter alia, on questions relating to the execution of the agreement for sale, payment of Rs. 3000/ to the defendant, and the inability of the defendant to perform the contract. FAC |
That court held that the plaintiff had proved the agreement for sale and the payment of Rs. 3000/ ' . FAC |
It also held that the agreement for sale could be "enforced for plots allotted to the defendant in lieu of plot mentioned in the agreement in consolidation. FAC |
" It therefore decreed the suit for specific performance by its judgment dated August 23, 1973. FAC |
The Second Additional District Judge, Badaun, upheld the decree, and as the High Court has dismissed the second appeal as aforesaid, defendant Piarey Lal has come to this Court for a redress of his grievance by special leave. FAC |
As has been stated, the limited question for considera tion in this Court is whether the defendant was liable to specifically perform the contract for sale of his old hold ing even after its consolidation and the allotment of a 'chak ' ? Ratio |
It appears that there was controversy in the Allahabad High Court on the question whether an agreement for sale, in the circumstances of a case like this, was rendered void under section 56 of the Contract Act because of the order of consolidation allotting new plots for the earlier plots in respect of which the agreem... |
A Single Judge of that Court took the view in Sugna and another vs Kali Ram and others(1) that the agreement became void and impossible of performance, and was not saved by section 30 of the Act. Ratio |
A different view was however taken by another Single Judge in Chetan Singh and others vs Hira Singh and others(1). Ratio |
The matter was re ferred to a Division Bench in Shanti Prasad vs Akhtar and another.(2) One of the Judges in the Division Bench was the Judge who had given the decision in Chetan Singh 's case. Ratio |
The Bench held that the duty of the seller to execute the conveyance of the property agreed to be sold, was a liabil ity recognised by law and was enforceable as the liability "relates to the land mentioned in the agreement" and was "transferred to the new 'chak '" under section 30(b) of the Act. Ratio |
The decision in Shanti Prasad 's case formed the basis of the decision of the first appellate (1) (2) (3) 917 court in this case, and that appears to be the reason why the High Court has dismissed the second appeal summarily. Ratio |
The controversy therefore turns on the proper interpretation of section 30 of the Act which deals with the consequences which ensue on exchange of possession as a result of the allotment of a 'chak ' to the tenure holder. Ratio |
Clauses (a) and (b) of section 30 of the Act provide as follows, "30.Consequences which shall ensue on exchange of possession. STA |
With effect from the date on which a tenure holder enters, or is deemed to have entered into possession of the chak allotted to him, in accordance with the provi sions of this Act, the following consequences shall ensue (a) the rights, title, interests and liabili ties (i) of the tensure holder entering, or deemed to h... |
" It would thus appear that while clause (a) deals with the rights, title, interests and liabilities of the tenure holder entering into possession of the 'chak ', as well as of the former tenure holder of the plots comprising the 'chak ', in their respective original holdings, and provides that those rights, title, int... |
" The expression 'chak ' has been defined in section 3(1 A) of the Act to mean "the parcel of land allotted to a tenure holder on consolidation." Ratio |
The two clauses therefore are quite simple and clear, and ' do not raise any real problems of interpretation, but the question is whether there is justification for the argument, in the facts and circumstances of this case, that the expression "liabilities" would cover the liability of the seller (i.e. the defendant), ... |
As is obvious, clause (a) of section 30 does not bear on the question in controversy because it only provides for the cessation of the rights, title, interests and liabilities both of the tenure holder to whom the 'chak ' has been allot ted, and of the former tenure holder 918 of the plots comprising the 'chak ' in the... |
There is no controversy that this was so in the present case. Ratio |
It is also no body 's case that the rights, title, and interests of the tenure holder entering into possession of his 'chak ' have any bearing on the con troversy relating to the specified performance of the agree ment for sale, for all that has been urged before us is that the defendant, as the tenure holder of the ne... |
What therefore remains for consider ation is whether, on the defendant 's entering into posses sion of his new land or 'chak ', there was the same liability "in" the new land as "in" the original holding. Ratio |
It there fore to be examined whether, by virtue of the agreement for sale, any liability accrued "in" the original holding ? A cross reference to section 54 of the Transfer of Property Act shows that a contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settl... |
It has however been specifically provided in ' the section that such a contract "does not, of itself, create any interest in or charge on such property. Ratio |
" It would therefore follow that the agreement for Sale in the present case did not give rise to any interest "in" the original holding of the defendant as the tenure holder. Ratio |
That being so, there could be no occasion for the transfer of any such "liability in" the new land or 'chak ' of the defendant so aS to attract clause (b) of section 30 of the Act. Ratio |
In fact what the defendant, was bound to do under section 55(1)(d) of the Transfer ' of Property Act was to execute a proper conveyance of "the property" which was the subject matter of the contract for sale, and not of any other property. Ratio |
So when he lost that property as a result of the scheme of consolidation and his rights, title, interests ceased in that property by virtue of clause (a) of section 30 of the Act, the agreement for sale became void within the meaning of section 56 of the Contract Act, and it is futile to urge that they were saved by cl... |
We have gone through the decision in Shanti Prasad 's case (supra), but we find that while the High Court took note of the fact that the right 's, title, interests and liabilities of the tenure holder "in" his original holdings ceased, and he acquired the same rights, title, interests and liabilities "in" the 'chak ' a... |
That was why it fell into the error of holding that a liability was created in the original holding of the defendant, and was transferred his 'chak ' on his entering into its possession. Ratio |
As has been shown, that was an erroneous view which has to be rectified. Ratio |
It may be mentioned that counsel for the respondent tried to argue that the defendant was bound to execute a proper conveyance of his original holding, which was the subject matter of the agreement of sale, because, that holding had been substituted" by the 'chak '. ARG |
919 He also tried to argue that the 'chak ' allotted to the defendant by way of consolidation of his holding was the same as his original holding so that there was no occasion to invoke section 30 of the Act. ARG |
Counsel could not however support his argument by reference to the law, or the facts of the case. Ratio |
Moreover he was unable to show how he could raise any such argument when the special leave had been limited to the interpretation of clauses (a) and (b) of section 30 of the Act. Ratio |
It would thus appear that the plaintiff respondent 's suit for specific performance of the agreement for sale was liable to dismissal, and the High Court as well as the courts below erred in taking a contrary view. Ratio |
Counsel for the appellant has however frankly stated at the bar that the appellant would be willing to refund the sum of Rs. 3000/ along with interest at 6 per cent per annum from the date of payment. ARG |
The appeal is allowed with costs, the impugned judgment of the High Court is set aside, and the suit of plaintiff respondent Hori Lal is dismissed in so far as it relates to specific performance of the agreement for sale. RPC |
It is however ordered that the defendant shall repay Rs. 3000/ to the plaintiff, along with interest at 6 per cent per annum from the date of payment, within three months from today. RPC |
M.R. Appeal allowed. RPC |
Civil Appeal No. 783 of 1972). FAC |
(Appeal by Special Leave from the Judgment and Order dated the 1st December 1969 of the Calcutta High Court in Civil Rule No. 1274 of 1974). FAC |
S.C. Majumdar and Mrs. Laxmi Arvind, for the appellant. FAC |
G.C. Sharma and P.L. Juneja, for the respondent. FAC |
The Judgment of the Court was delivered by BHAGWATI, J. FAC |
This appeal by special leave raises a short question of law as to the scope of granishee proceed ing under section 73, sub section (5) of the read with section 46(5A) of the Indian Income Tax Act, 1922. FAC |
A brief narration of the facts giving rise to the appeal would be sufficient to explain the back ground against which the question arises for determination in the appeal. FAC |
One Raj Bhupati Nath Dev Bahadur died on 23rd September, 1959 leaving considerable movable and immovable properties which included inter alia a building situate at No. 13, India Exchange Place, Calcutta. FAC |
Respondents Nos. 3 and 4 Claiming respectively to be the son and daughter of the deceased delivered to the Assistant Controller of Estate Duty an account in form ED 1 of the properties in respect of which, according to them, estate duty was payable on the death of the deceased. FAC |
The account was filed by respond ents Nos. 3 and 4 in their capacity as executors of the Will dated 20th December, 1957 said to have been made by the deceased prior to his death. FAC |
The Assistant Controller issued notice under section 58,sub section (2) to respond ents Nos. 3 and 4 as accountable persons and after hearing them, made:an order dated 23rd September, 1960 assessing the principal value of the estate of the deceased and determin ing a sum of Rs. 1,40,090.20 as the amount payable as esta... |
It appears that the Assistant Controller was not able to recover the amount of estate duty from re spondents Nos. 3 and 4, since most of the estate of the deceased consisted of immovable ' properties which wore let out to different tenants ' and according to respondents Nos. 3 and 4, rent was not being paid to them by ... |
One of the immovable properties left by the deceased, namely, the building situate at No. 13, India Exchange Place CalcUtta was in the possession of the appellant. FAC |
According to the 493 appellant, it had been let out to him by nine persons who were the nephews and nieces of the deceased and who claimed to be the heirs of the deceased on the basis that the de ceased died without making any Will and did not leave any widow or son or daughter surviving him. FAC |
The lease given to the appellant by these nine persons, who may for the sake of convenience be hereinafter referred to as the lessors, was under a registered deed dated 5th March, 1960 and it was a lease for a period of thirty one years with effect from 1st March, 1960 carrying rent at the rate of Rs. 1,400/ per month.... |
Since the leased premises that is how we propose to describe the building leased to the appellant by the les sors admittedly belonged to the estate of the deceased, the rent payable by the appellant was a fortjori an amount which in law belonged to the estate and hence the Assistant Con troller issued a notice dated 9t... |
It was stated in the notice that any payment made by the appellant in compliance with the request contained in the notice would in law be "deemed to have been made under the authority of the accountable person" and the receipt of the Assistant Controller "will constitute a good and sufficient discharge of his liability... |
The appellant, on receipt of the notice, paid the rent for the months of December, 1961 and January 1962 aggregating to Rs. 2,800/ to the Assistant Controller and informed the lessors about the same. FAC |
The lessors, by their attorney 's letter dated 24th February, 1962, however, contended that the notice issued by the Assistant Controller against the appellant was ineffec tual, since the lessors had not been assessed to estate duty by the Assistant Controller as accountable persons and the Assistant Controller was, th... |
The appellant acting on this letter of the lessors ' attorneys did not pay any further rent to the Assistant Controller but paid rent for the months from February to May 1962 to the lessors. FAC |
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