A suit for recovery of the price of goods is not maintainable if the plaintiff admits that it has not received negotiable documents of title to the goods and that the property in the goods has not passed to it.

1. G.A. No. 4155 of 2008 is the plaintiffs application for the appointment of a Receiver over approximately 75 MT of palm oil which is a part of the subject-matter of the suit. G.A. No. 284 of 2009 is the plaintiffs second application seeking payment of the amount deposited by the defendant in connection with the 75 MT of palm oil. G.A. No. 217 of 2009 is the defendant's application for revocation of leave granted under Clause 12 of the Letters Patent with alternate prayers for dismissal of the suit or rejection of the plaint. G.A. No. 453 of 2009 is the application of a third party for being impleaded or being permitted to intervene in the proceedings.

2. THE claim in the suit is that the plaintiff entered into a high seas sale for purchase of 1000 MT of palm oil from the applicant in G.A. No. 453 of 2009, which is said to be a sister concern of the plaintiff. THE plaint says that the plaintiff subsequently entered into another high seas sale with the defendant for sale of 500 MT of the palm oil. According to the plaint, the defendant did not make any payment for the goods but obtained copies of the documents and received delivery thereof by making payment of the customs and port charges. THE plaint speaks of the defendant having taken delivery of about 425 MT of palm oil and the balance about 75 MT being held at or about the port premises in Kandla. At paragraph 2 of the plaint, it has been stated that the plaintiff entered into the agreement for sale of 500 MT of palm oil in favour of the defendant from the plaintiffs registered office within jurisdiction. At paragraph 3, it has been pleaded that the documents in respect of the 1000 MT of palm oil were received by the plaintiff at its registered office within jurisdiction. Thereafter, paragraph 4 of the plaint reads as follows:

"4. There has been no negotiable set of documents made over to the plaintiff. The property in the goods has not passed in favour of the plaintiff. However, on faith and trust, the plaintiff issued delivery order in respect of the entire lot of 500 MT of the said goods. A copy of the delivery order is annexed hereto and marked with the letter "C". The delivery order was issued from the office of the plaintiff at 24A, Shakespeare Sarani, Kolkata-700 017, within the jurisdiction aforesaid."

(Emphasis supplied)

3. THE plaintiff obtained an ex parte order in G.A. No. 4155 of 2008 on December 24, 2008 for the appointment of a Receiver for selling the 75 MT of palm oil through public auction after advertisements. THE sale was subject to confirmation by Court. THE order recorded that the direction was given since the goods were perishable in nature and had a short shelf-life.

4. WHEN the matter was next taken up on January 12, 2009, the defendant appeared and submitted that the suit was not maintainable as the plaintiff had averred that it had no title to the goods. The order thereafter recorded the submission made on behalf of the defendant that the delivery order had been issued directly by the plaintiffs sister concern, the applicant in G.A. No. 453 of 2009, and that such sister concern subsequently fraudulently took delivery of 425 MT of palm oil by forging documents. The order further noted that a police complaint had been lodged by the defendant with the Lahori Gate Police Station, New Delhi on the ground of forgery and the matter was under investigation. However, since the defendant was ready and willing to pay the price of the 75 MT of palm oil that had been taken delivery of by the Receiver, the defendant was permitted to deposit such money with the Registrar, Original Side and obtain delivery of the goods. The defendant has since taken delivery of about 75 MT of palm oil.

5. THE defendant says that there was no question of the defendant making any payment in respect of the original 425 MT of palm oil since the defendant did not have the benefit of the goods. According to the defendant, the goods were stored at some place and the plaintiffs s