In a contract for the sale of unascertained goods, property in the goods does not pass to the buyer until the goods are ascertained by appropriation.

( 1 ) THIS plaintiffs appeal is directed against the judgment and decree of the Second Additional civil Judge, Aligarh, dated 30-10-1974 dismissing the suit with costs.

( 2 ) THE appellant filed a suit against the U. P. State Electricity Board and Superintending engineer and the Executive Engineer, Harduaganj, district Aligarh, for grant of a decree for mandatory injunction. The suit was filed on the allegations that the U. p. State Electricity Board has a Steam Power Station at Kasimpur, known as Harduaganj Steam Power Station, in the district of Aligarh. In the process of working of the Power Station waste coal ash is discharged which is released by the authorities for sale to public. The appellant carries on business of sale of waste coal ash. On 12-9-1973 he made an application to the Superintending Engineer, defendant no. 2, for purchase of 500 truck load of waste coal ash equivalent to 1. 5 lac cubic feet of ash at the rate of 16. 25 per 100 cubic feet. The Superintending Engineer who was empowered to effect sale of the coal ash accepted his proposal, whereupon the appellant deposited a sum of Rs. 25,350 on 21-9-1973 towards the price of the coal ash with the defendants and he approached the defendants for delivery of coal ash but the defendants Nos. 2 and 3 did not allow him to remove the waste coal ash. The defendants asked the appellant to pay price at the rate of Rs. 17 per 100 cubic ft. Since the appellant had paid the entire price of waste coal ash at the rate agreed upon between the parties the defendants had no right to stop him from removing the waste coal ash or to refuse permission to the plaintiff to remove the waste coal ash from bunkers of Power Station. On these allegations the plaintiff claimed relief for issue of a permanent injunction against the defendants restraining them from causing any interference in the plaintiffs right to remove the waste coal ash from the premises of Harduaganj Power Station to the extent of 1. 5 lacs of cubic feet.

( 3 ) THE defendants-respondents filed written statement and contested the suit. The main contention raised on behalf of the defendants was that the price of the waste coal ash generally remains fluctuating and an intending purchaser has to pay price at the rate prevailing on the date of issue of the gate pass. The appellant had no doubt deposited the price but he was not entitled to remove the coal ash at the rate of Rs. 16. 25, instead he had to pay increased price at the rate prevailing on the date of the removal of waste coal ash. The appellant had refused to pay the price at the rate prevailing on the day of the issue of gate pass, as such he was not entitled to remove the coal ash. They further pleaded that no completed contract had ever been executed between the parties. Lastly, the defendants pleaded that the appellants suit for permanent injunction was not maintainable.

( 4 ) ON the pleading of the parties the trial court framed the following four issues;

1. Whether there was no complete contract in respect of 500 trucks of waste coal ash at the rate of Rs. 16,25 per 100 sq. feet between the parties?

2. Whether the plaintiff was to pay at the rate prevailing on the day when the gate pass was to be issued?

3. Whether the suit for mandatory injunction is not maintainable? 4. To what relief, if any, is plaintiff entitled? the trial court answered the first two issues in appellants favour, held that the appellant had successfully proved by cogent evidence that his offer for purchase of 500 truck loads of waste coal ash at the rate of Rs. 16. 25 per cubic feet had been accepted by the defendants and in pursuance of that acceptance he had deposited the price of the said waste coal ash. The trial court further held that there was a completed contract in respect of sale of 500 truck loads of waste coal ash at the rate of Rs. 16. 25. The trial court further held that the appellant was not liable to pay price at the rate prevailing on the date of issue