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PETITIONER: JUTE AND GUNNY BROKERS LTD.AND ANOTHER

       Vs.

RESPONDENT: THE UNION OF INDIA AND OTHERS.(and connected appeals)

DATE OF JUDGMENT: 17/02/1961

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B. GUPTA, K.C. DAS

CITATION:  1961 AIR 1214            1961 SCR  (3) 820  CITATOR INFO :  D          1973 SC2061  (12)  F          1978 SC 389  (9,19,21,45)  E          1980 SC1163  (6)

ACT: Requisition and Acquisition of Property-Orders by Government of  India-Notice  on managing  agents   Validity-Holders  of Pacca delivery order, if owners of goods-Estoppel-Defence of India  Act, 1939 (35 of 1939)-Defence of India Rules,  1939, rr. 75A, 119 Code of Civil Procedure, 1908 (Act V of  1908), 0.  XXIX, r. 2 Indian Companies Act, 1913 (7 Of  1913),  ss. 2(11),148-Indian Sale of Goods Act, 1930 (3 Of 1930), S. 18.

HEADNOTE: The  Government of India entered into an agreement with  the President  of Argentine Institute for Promotion of Trade  to supply Hessian in return for licences for. shipment to India of  food-stuff purchased there and with a view to  implement that agreement issued orders under r. 75A(i) of the  Defence of India Rules, 1939, on the managing agents of certain jute mills  on  September 30, 1946,  requisitioning  hessian  and directing  them  and any other person in possession  of  the said  goods  to deliver them to the  Director  of  Supplies, Calcutta.  Although in the heading of the notices after  the names  of  the managing agents it was not stated  that  they were  being  addressed as managing agents of such  and  such mills,  the  schedules attached to them made it  clear  that they  were  addressed ’as managing agents of such  and  such mills.   On  the same day notices of  acquisition  under  r. 75A(2) were served on the said managing agents and they were further  informed that under r. 75A(3) the goods would  vest in the Government at the beginning of the same day free from any  mortgage, pledge, lien and other  similar  encumbrance. The   notices  of  acquisition  were  also  accompanied   by schedules  similar  to those  accompanying  the  requisition orders.  The 821 Government of India tried to take possession of the  hessian but  was  resisted  by the mills and the  holders  of  pucca delivery  orders  and  brought the suit, out  of  which  the present  appeals  arose, for enforcing the  said  orders  of

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requisition  and  acquisition.  The Defence  of  India  Act, 1939,  and  the Rules made thereunder, had in  the  meantime come to an end and the question before the courts below  was whether the orders of requisition and acquisition as  served were  effective in law.  The trial judge held that as  there were  no  valid orders of requisition as the mills  had  not been  properly  served and since the goods were  subject  to pucca  delivery orders, the mills as well as the  Government were estopped from challenging the ownership of the  holders of the said delivery orders.  The appeal court held that the orders  of  requisition  were valid and  binding,  that  the mills, and not the holders of the delivery orders, were  the owners of the goods but that the notices of acquisition  had not  been served as required by r. 75A(2) Of the Rules  and, therefore, there was no valid acquisition under r. 75A(3) Of the Rules. Held,  that the requisition of the goods could  be  effected either by taking possession of them or by requiring them  to be  placed at the disposal of the requisitioning  authority. Since in the present case, the mills and not the holders  of the  delivery  orders were admittedly in possession  of  the goods on the date of the requisition, the proper persons  to be served with the orders were the mills. Since  the Rules did not expressly provide as to the  manner in  which orders of requisition in writing under r. 75A  had to be served, r. 119(i) must apply and as the orders in  the present  case concerned an individual corporation, they  had to  be served in the, manner prescribed by 0. XXIX, r. 2  of the Code of Civil Procedure.      The word "officer" as defined by S. 2(ii) Of the Indian Companies  Act,  1913, includes a managing  agent  and  such definition  can be utilised for the purpose of the Code  and regard being ha to the nature of his duties there can be  no doubt that a managing agent would be within the expression " other principal officer" in   O. XXIX, r. 2(1) of the Code. There was no basis for the contention that service under r.2 must  be  on  some human being or that  there  could  be  no effective  service  on  a  corporation  by  serving  another corporation which might be its principal officer. The  service  of the orders of requisition on  the  managing agents  obviously meant for the mills in the  instant  case, was,  therefore,  good service under 0. XXIX, r.  3  Of  the Code. Since  r.  75A(2)  itself did not provide for  any  mode  of service  of notice under it, either the one or the other  of the  modes specified in s. I48 of the Indian Companies  Act, 1913,  or  0. XXIX, r. 2 Of the Code would be  a  reasonable mode  of effecting service thereunder.  In the instant  case the notices of 822 acquisition  having been served under 0. XXIX, r.  2(a),  as the  orders of requisition had also been, such  service  was good service and the acquisition was effective in law. It  was  not correct to say that the property in  the  goods represented by the pucca delivery orders had passed to their holders.  The contract involved in such delivery orders is a contract of sale of unascertained goods and in view of s. 18 of the Indian Sale of Goods Act, 1930, title cannot pass  to the buyer till the goods are ascertained by appropriation. Anglo-India  jute  Mills Co. v. Omademull (1910)  I.L.R.  38 Cal. 127, explained. It  was not correct to say that the Government of  India  in acquiring the requisitioned goods was claiming title through the mills and would be, like them, estopped qua the  holders of pucca delivery orders.  The power to acquire the property

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flowed  from  the Defence of India Act and  the  Rules  made thereunder  and covered not merely the rights of the  owners but the entire goods.  Rule 75A(3) of the said Rules made it quite  clear  the  acquisition thereunder  was  of  a  title paramount  and of the whole of the property freed  from  all kinds of encumbrances. No  question of serving any notice on the holders  of  pucca delivery orders, therefore, arose in the present case as the property in the goods had not in law passed to them.

JUDGMENT: CIVIL  APPELLATE JURISDICTION: Civil Appeals Nos. 314-316  & 778 of 1957. Appeals  from  the Judgment and Decree  dated  September  8, 1954,  of  the Calcutta High Court in appeal  from  Original Decree No. 159 of 1951. S.   Chowdhury,  B.  Das and P. K. Ray  Chaudhury,  for  the appellants in Civil Appeal No. 314 of 1957. M.   C.  Setalvad, Attorney-General for India, R.  Ganapathy Iyer and D. Gupta, for respondent No. 1. S.   N. Mukherjee, for respondent No. 2. S.   M.  Bose, B. Sen and B. N. Ghosh, for respondents  Nos. 3-18, 20-40, 42 and 44-47. B.   N. Ghosh, for respondent No.48. N.   C. Chatterjee and P. K. Chatterjee, for respondent  No. 51. S.   M. Bose, S. Chowdhury, B. Sen and B. N. Ghosh, for  the appellants in Civil Appeal No. 315 of 1957. M.   C.  Setlvad, Attorney-General for India,  R.  Ganapathy Iyer and D. Gupta, for respondent No. 1. S. N. Mukherjee, for respondent No. 2. 823 P.   K. Ray Chaudhury, for respondent No. 6. B.   Das and P. K. Ray Chaudhury, for respondents Nos. 8-28. P.   K. Chatterjee, for respondent No. 30. S.   Chowdhury and P. K. R. Chaudhury, for the appellant  in Civil Appeal No. 316 of 1957. M.   C.  Setalvad, Attorney-General for India, R.  Ganapathy Iyer and D. Gupta, for respondent No. 1. S.   N. Mukherjee, for respondent No. 2. B.   Das and B. N. Ghosh, for respondents Nos. 3-18,  20-40, 42, 44, 47 and 49-69. N.   C. Chatterjee and P. K. Chatterjee, for respondent  No. 71. M.   C.  Stealvad, Attorney-General for India, R.  Ganapathy Iyer and D. Gupta, for the appellant in Civil Appeal No. 778 of 1957. S.   M.  Bose,  S. Chowdhary, B. Sen and B.  N.  Ghosh,  for respondents Nos. 2-17, 19-39, 41 and 43-46. Sukumar Ghose, for respondent No. 40. S.   Chowdhury  and P. K. Ray Chaudhury, for respondent  No. 47. S.   Chowdhury,  B.  Das  and  P.  K.  Ray  Chaudhury,   for respondents Nos. 49-69. N.   C. Chatterjee and P. K. Chatterjee, for respondent  No. 71. 1961.  February 17.  The Judgment of the Court was delivered by WANCHOO,  J.-These four appeals on certificates  granted  by the  High  Court at Calcutta arise out of one  judgment  and will be dealt with together.  The brief facts necessary  for present purposes are these: In September 1946 there was food shortage in the country.  In order to relieve this shortage,

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the  Government of India entered into an agreement with  the President  of Argentine Institute for Promotion of Trade  by which it undertook to freeze, requisition and take over  and sell to the Argentine Institute and ship to Argentine 30,000 tons  of hessian and, in return the Institute guaranteed  to obtain licences for shipment 824 from  Argentine of maize and wheat offals already  purchased by the Government of India in Argentine.  This agreement was arrived  at on September 27, 1946.  In anticipation of  this agreement,  the Government of India on September  20,  1946, addressed  letters  to the managing agents of  various  jute mills in Bengal demanding from them information as to stocks of  hessian of certain description held by the  mills  under their  managing agencies and prohibiting them from  selling, transferring, removing, consuming or otherwise disposing  of any  article  enumerated in Sch.  B  to  the  communication. This  demand was made under Sub-rule (5) of r. 75-A  of  the Defence  of  India  Rules (hereinafter  called  the  Rules). After  the information had been gathered, the Government  of India  issued  an order on September 30, 1946, to  the  same managing agents requisitioning the hessian specified in  the Schedule  to  the order and directing them and  every  other person  in possession of the said property to deliver it  to the Director of Supplies, Calcutta, and in the meantime  not to  dispose  of  the  property in  any  manner  without  the permission  of the Central Government.  The Schedule to  the order  in  each  case  indicated the  mill  from  which  the requisition  was made, the quantity, the description of  the hessian and the name of the registered stock-holders.  These requisition  orders were served upon the managing agents  of the  mills under sub-r. (1) of r. 75-A of the Rules on  that very  day.  Thereafter on the same day, that  is,  September 30, 1946, the Government of India issued a notice under sub- r. (2) of r. 75-A to the managing agents communicating  that it had been decided to acquire the property under that  sub- rule.   The  managing agents were further informed  that  by virtue of sub-r. (3) of r. 75-A the said property would vest in  the  Central Government at the beginning of the  day  on which  the  notice  was,  served upon  them  free  from  any mortgage,  pledge, lien or other similar  encumbrance.   The notices of acquisition were accompanied by schedules similar to the schedules accompanying the requisition orders.   This notice of acquisition was also served on the same day on all the 825 managing  agents.   Further  on  the  same  day  the  Deputy Director  of  Supplies, Government of India,  wrote  to  the Secretary,  Indian  Jute  Mills  Association  that  shipping instructions  would be issued in due course by the  Director of Supplies, Calcutta, with respect to hessian requisitioned and  acquired under the orders and notices already  referred to.   The  Government then tried to take possession  of  the hessian  requisitioned  and acquired but the mills  and  the holders of delivery orders resisted the Government’s attempt on the ground that the orders of requisition and acquisition were invalid.  The Government of India then filed the  suit, out  of which the present appeals have arisen,  on  December 11,  1946,  for  enforcing the  orders  of  requisition  and acquisition and also applied for a receiver to be appointed. This application was resisted and it became apparent that it would  take  some time before it could be disposed  of.   As ships  which  were to carry the hessian  to  Argentine  were ready  and shipment could not be delayed, the Government  on January  7, 1947, promulgated an Ordinance, being  Ordinance

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No.  I of 1947, whereby notwithstanding the pendency of  the suit the title and possession of the goods requisitioned and acquired   were  made  to  vest  in  the  Government.    The Government  then took possession of the hessian and  shipped the  same  to Argentine.  The suit however  did  not  become infructuous  or unnecessary after this because s. 3  of  the Ordinance provided that the suit should be proceeded with in regard  to one question involved in it and decision  thereon obtained.  Under s. 3 it was provided that if in the suit it was  finally  decided that the said goods were  not  validly requisitioned  or acquired by the Central Government on  the 30th  day of September, 1946, each of the  several  previous owners  of -the said goods would be entitled to  receive  as compensation  from the Central Government the  market  price prevailing  on the date of the institution of the  aforesaid suit; but if no such decision was made in the suit, the said goods would be deemed to have been validly requisitioned and acquired  by the Central Government on the  30th  September, 1946, and the 826 amount of compensation to be paid by the Central  Government to  the several previous owners of the said goods  would  be determined in accordance with the provisions of law in force on  September  30, 1946, relating, to  the  requisition  and acquisition  of movable property under the rules made  under the  Defence of India Act, 1939.  It may be  mentioned  that the  Defence  of  India  Act,  1939,  and  the  Rules   made thereunder  came to an end on September 30,1946.   The  main question therefore which remained to be decided in the  suit was  whether the orders of requisition and acquisition  were valid and binding on the respective defendants; and the suit was confined to obtaining a declaration to that effect.   If a  declaration  was granted to the Government  of  India  as prayed, the compensation would be determined as on September 30, 1946, in accordance with the provisions of law in  force on  that day relating to the requisition and acquisition  of movable  property under the rules made under the Defence  of India Act, 1939.  On the other hand, if no such  declaration was  granted,  compensation would have to be arrived  at  in accordance  with the market price of hessian  prevailing  on the  date  on which the suit was filed, i.e.,  December  11, 1946. The  main  questions which arose for  determination  in  the trial court were four, namely-(1) Were the alleged orders of requisition  dated  September 30, 1946,  -mentioned  in  the plaint  properly and/or validly and/or duly served? (2)  Did such  alleged  orders effect any valid  requisition  of  the goods  mentioned in the Schedules to such orders? (3),  Were the  orders  and  notices of acquisition  mentioned  in  the plaint  properly made or given and/or duly served ?  (4)  Is there  any  custom  of trade, practice or  usage  that  upon delivery  orders  being  made over  to  the  buyers  against payment  the  property  in the  goods  represented  by  such delivery orders passed to such buyers ? Sarkar,  J., who tried the suit on the original side of  the High Court held that the orders of requisition were properly and validly made.  He further held that there was no service of  the orders on the mills which were in possession of  the hessian and which 827 had to be served in order to effect a valid requisition.  He therefore held that as there was no proper or due service of the  orders  there  was no -valid  or  binding  requisition. Further  on the question of acquisition he held that as  the goods  requisitioned  and  acquired were  subject  to  pucca

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delivery orders and in view of the usage that pucca delivery orders  were only issued against payment, were  passed  from hand to hand by endorsement and were sold and dealt with  in the  market  as absolutely representing the goods  to  which they relate and as the mills were estopped from  challenging that  the property in the goods had passed (see  Anglo-India Jute  Mills Co. v. Omademall (1)), the Government which  was claiming  ownership  through the mills was also  subject  to estoppel and as the holders of the delivery-orders being the owners of the property were not served on September 30,1946, under  r. 75-A (2) of the Rules, the property in  the  goods therefore did not pass on September 30, 1946.  On this  view the suit was dismissed. The  Union of India then went in appeal.  The  appeal  court reversed   the  view  of  Sarkar  J.  on  the  question   of requisition.  It held that the requisition orders did affect and  intended to affect individual mills and service on  the managing agents of the -mills was good service on the  mills and therefore the orders of requisition were valid.  On  the question of acquisition the appeal court posed the  question whether the notices of acquisition were served on the owners as required by r. 75-A (2).  It did not agree with the  view of  Sarkar J. that the Government was claiming  through  the mills and were therefore estopped from challenging the title of  the  holders  of delivery orders.   It  also  held  that property in the goods could not pass by estoppel in the face of  the  provisions of the Sale of Goods Act, III  of  1930. Accordingly  it held that it was not necessary to serve  the holders of the delivery orders with notices of acquisition ; but it further held that the mills which were the owners  of the goods requisitioned were not served with the notices of (1)  (1910) I.L.R. 38 Cal. 127, 828 acquisition,  as in its opinion strict compliance with,  the provisions  of  the rules in 0. XXIX of  the-Code  of  Civil Procedure were necessary in order that transfer of ownership contemplated  under r. 75-A of the Rules, may  be  effected. Further  as  there was failure to comply strictly  with  the provisions of 0. XXIX of the Code of Civil Procedure and  as in  the view of the appeal court r. 119 (I-B) of  the  Rules did  not  apply,,,  to the case, there  was  no  service  of notices of acquisition on the owners as required by r.  75-A (2) of the Rules therefore it held that the acquisition  was not  valid.  In the result the appeal was partly allowed  as to  the  effect of the requisition orders but  the  view  of Sarkar  J.  was  upheld  as to  the  effect  of  notices  of acquisition. This  has  been  followed by four  appeals  on  certificates granted  by the High Court.  Appeals Nos. 314 to 316 are  by the  defendants  in  the suit challenging the  view  of  the appeal  court that the orders of requisition were valid  and binding.   The appellants in these appeals will  hereinafter be referred to as the defendants.  Appeal No. 778 is by  the Union of India challenging the view of the appeal court that the,  notices  acquisition  were not  properly  served  and, therefore there was no acquisition of property: on September 30, 1946, as provided by r. 75-A (3). We shall first deal with the three appeals by the defendants relating to the requisition-orders.  It is necessary to  set out  rr. 75.A and 119 of the Rules in this  connection,  for the validity of the requisition orders depends upon  whether the,  two rules have been complied-’, with.  The  two  rules are as follows:-               "  75A. (1) If in the opinion of  the  Central               Government or the Provincial Government it  is

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             necessary  or expedient so to do for  securing               the defence British India, public safety,  the               maintenance  of public order or the  efficient               prosecution  of  the war, or  for  maintaining               supplies and services essential to the life of               the community, that Government may by order in               writing  requisition any property, movable  or               immovable, and may make-such further orders as               829               appear  to that Government to be necessary  or               expedient     in    connection    with     the               requisitioning :               Provided that no property used for the purpose               of  religious worship and no such property  as               is referred to in rule 66 or in rule 72  shall               be requisitioned under this rule.               (2)   Where  the  Central  Government  or  the               Provincial  Government has  requisitioned  any               property  under sub-rule (1), that  Government               may  use  or deal with the  property  in  such               manner  as may appear to it to  be  expedient,               and  may  acquire it by serving on  the  owner               thereof,  or  where the owner is  not  readily               traceable  or the ownership is in dispute,  by               publishing  in the Official Gazette, a  notice               stating   that  the  Central   or   Provincial               Government, as the case may be, has decided to               acquire it in pursuance of this rule.               (3)   Where a notice of acquisition is  served                             on  the owner of the property or  published  i n               the official gazette under sub-rule (2),  then               at  the  beginning  of the day  on  which  the               notice is so served or published, the property               shall   vest  in  Government  free  from   any               mortgage, pledge, lien or other similar encum-               brance  and  the  period  of  the  requisition               thereof shall end.               (4).........................................."               "119. (1) Save as otherwise expressly provided               in  these Rules, every authority,  officer  or               person  who  makes  any order  in  writing  in               pursuance of any of these Rules shall, in  the               case  of  an  order of  a  general  nature  or               affecting  a class of persons, publish  notice               of  such order in such manner as may,  in  the               opinion of such authority, officer or  person,               be best adapted for informing persons whom the               order  concerns,  in  the  case  of  an  order               affecting  an individual corporation  or  firm               serve  or cause the order to be served in  the               manner  provided for the service of a  summons               in rule 2 of Order XXIX or rule 3 of Order XXX               as  the case may be in the First  Schedule  to               the Code of Civil Procedure, 1908 (V of 1908),               and in the case of an               830               order  affecting  an  individual  person  (not               being  a corporation or firm) serve  or  cause               the order to be served on that person--               (i)   personally,  by delivering or  tendering               to him the order, or               (ii)  by post, or               (iii)where  the  person cannot  be  found,  by               leaving  an authentic copy of the  order  with

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             some  adult  male member of his family  or  by               affixing  such copy to some conspicuous,  part               of the premises in which he is known to  have,               last   resided  or  carried  on  business   or               personally worked for gain.                (1-A).  Where any of these Rules empowers  an               authority, officer or person to take action by               notified order, the provisions of sub-rule (1)               shall not apply in relation to such order.                (1-B).   If  in the course  of  any  judicial               proceeding, a question arises whether a person               was   duly  informed  of  an  order  made   in               pursuance of these Rules, compliance with sub-               rule (1), or, in a case to which sub-rule  (1-               A)  applies, the notification of  the  order,’               shall  be  conclusive  proof that  he  was  so               informed;  but a failure, to comply with  sub-               rule (1)-               (i)   shall not preclude proof by other  means               that he had information of the order; and                (ii)  shall  not affect the validity  of  the               order." The  scheme of r. 75-A(1) which provides for  requisitioning is that the Government has to form an opinion whether it  is necessary  or expedient to make a requisition  for  securing the defence of British India, public safety, the maintenance of  public order or the efficient prosecution of the war  or for maintaining supplies and services essential to the  life of  the community.  After such opinion has been formed,  the Government may by order in writing requisition any property, movable or immovable, and make such further orders as appear to it to be necessary ;or expedient in that connection.   It has been faintly urged on behalf of the defendants that  the orders  of requisition were invalid as they did  not  comply with 831 the  first condition indicated above, namely, the  necessity or  expediency  of passing the order.  It is enough  to  say that  there  is nothing in this contention.   The  order  of September  30, 1946, states in so many words that "  in  the opinion  of  the  Central Government  it  is  expedient  for maintaining  supplies and services essential to the life  of the  community " to make a requisition.  It has  never  been the case of the defend. ants that the orders of  requisition were passed mala fide In these circumstances, in the absence of mala fide, the opinion of the Government is final and the purpose   indicated   by  it  in  the  orders   for   making requisitions  is one of the purposes for which an  order  of requisition can be made under r. 75-A. The  main contention of the defendants in their  appeals  is that r. 75-A contemplates that the order of requisition must be  brought to the knowledge of the person  whose  interests are being affected by it and that this was not done in  this case,  for  neither the holders of delivery orders  nor  the mills  were  apprised  of  the  orders  of  requisition   on September  30,  Therefore, it is urged that  the  orders  of requisition were not valid and binding.  Now sub-rule (1) of r.  75-A  does not specifically provide for  the  manner  in which  an order of requisition is to be served, nor does  it provide specifically on whom such an order should be served. So far as the person on whom an order of requisition  should be served is concerned, we agree with the appeal court  that service of such an order is necessary on the. person who can place  the  goods  in  question  at  the  disposal  of   the requisitioning authority and until that is done there cannot

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be any valid and effective requisition.  This is also  clear from the definition of the word " requisition " in r.  2(11) of  the Rules, for " requisition " means in relation to  any property,  to take possession of the property or to  require the   property  to  be  placed  at  the  disposal   of   the requisitioning   authority.   Therefore  a  requisition   of property can be effected either by taking possession of  the property  or by requiring the property to be placed  at  the disposal  of the requisitioning authority.  In  the  present case we are concerned with 832 the  second  mode  of requisition.  In such  a  case  it  is necessary  that  the party which is required  to  place  the goods  in  question at the disposal  of  the  requisitioning authority should be informed of the order of requisition, so that  it  may  place the property at  the  disposal  of  the requisitioning  authority as required by the  order.   Three questions  therefore immediately &rise in  this  connection, namely,  (i) who were the proper persons on whom  orders  of requisition should have been served, (ii) what is the manner in  which  the  orders should have been  served,  and  (iii) whether proper persons have been served in the proper manner in this case. So  far as an order of requisition is concerned, we  are  of opinion  that  there is no question of any  service  of  the order on the holders of delivery orders, for whatever may be their  position as to the ownership of the goods  (a  matter with  which we shall deal later when considering the  matter of, acquisition), they were admittedly not in possession  of the   goods  on  September  30.   Further  the  goods   were admittedly in the possession of the mills and therefore  the proper  persons to be served with the orders of  requisition in this case were the mills. The  next  question is as to the manner in which  the  mills which were in possession of the goods had to be served.   To that  the answer is in our opinion to be found in r. 119  of the  Rules.   Rule 119 (1) provides that save  as  otherwise expressly provided in these rules every order in writing  in pursuance  of  any  of these rules shall be  served  in  the manner provided therein.  Now there is no express  provision as to the manner in which an order of requisition in writing issued under r. 75-A has to be served ; therefore it has  to be served as provided in r. 119 (1).  Further, as orders  in this case concerned an individual corporation they had to be served in the manner provided for’ service of summons in  r. 2  of 0. XXIX of the Code of Civil Procedure.  Rule 2 of  0. XXIX provides that where ’the suit is against a corporation, the  summons  may  be served on the  secretary,  or  on  any director, or other principal officer of the corporation,  or by leaving 833. it  or  sending it by post addressed to the  corporation  as the,  registered office or if there is no registered  office then at the place where the corporation carries on business. We have therefore to see whether the mills were served  with the orders of requisition in the manner provided by r. 2  of 0.  XXIX  of the Code of Civil Procedure.  Further  in  case there is any irregularity in service it will have to be seen whether the matter comes under sub-r. (1-B) of r. 119. Let  us  therefore first examine the  question  whether  the mills  were  served as provided in 0. XXIX, r.  2.  Now  the orders  of requisition were sent to the managing  agents  of the  various jute mills.  It is true that in the heading  of the   order,  though  the  name  of  the   managing   agency corporation  was mentioned, it was not  specifically  stated

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there  that  the  order was being addressed  to  it  as  the managing agents for such and such mills.  But when one reads the  schedule  attached to each order sent to  the  managing agents,  it  becomes immediately clear that  the  order  was intended  for  the mills mentioned in the schedule  and  was being  served  on the managing agents of the mills.   As  an instance, we may refer to one requisition order addressed to Messrs.   Thomas Duff and Co. Ltd.  In the, schedule it  was clearly stated that the order was with respect to jute bales held  by  the jute mills under the managing  agency  of  the addressee  and the names of the jute mills with respect  to; which the order was passed and was being communicated to the managing  agents  were also mentioned,  that  is,  Titaghur, Victoria,  Samnaggur  (South) and  Samnaggur  (North)  Jute, Mills.   Any one. receiving this order should  be  therefore able immediately to understand that the order was -served on Messrs.  Thomas Duff and Co. Ltd., as the managing agents of the four jute mills mentioned above.  The defect  therefore, in the form of address was in our opinion of no consequence. The order read as a whole along with the schedule leaves  no doubt that the order was meant for the jute mills  mentioned in  the schedule and was addressed to Messrs.   Thomas  Duff and Co. Ltd. as the managing agents of, those jute mills, It is not in dispute, that 834 orders of requisition with respect to other mills  addressed to  other  managing  agents  were  in  the  same  form   and contained-  similar schedules.  There can therefore  in  our opinion  be  no doubt that the orders  of  requisition  were meant  for the mills and were addressed to them through  the managing  agents.   It is not in dispute that  those  orders were  served on the managing agents on September  30,  1946, and   the  only  question  therefore  that  remains  to   be considered is whether the service on the managing agents  on behalf of the mills is proper service as provided in r.  119 (1)  of the Rules read with r. 2 of 0. XXIX of the  Code  of Civil Procedure. In  the matter of service, we are concerned with cl. (a)  of O. XXIX, r. 2, which provides that summons may be served  on the secretary, or on any director or other principal officer of  the  corporation ; and what we have to  see  is  whether service  on  the  managing  agents  was  service  on  "other principal  officer" of the corporation.  Section 2  (II)  of the  Indian  Companies Act, No. VII of 1913,  which  was  in force  at  the  relevant time, defines an  "  officer  "  to include any director, managing agent, manager or  secretary. So  a managing agent of a corporation is an officer  of  the corporation.  The question then is whether he is,& principal officer, and the answer to our mind is obvious,  considering the  nature  of  the  duties  of  a  managing  agent  of   a corporation.  It is not seriously disputed either that if  a managing  agent is an officer of the corporation, he  would, considering  the  nature  of  his  duties,  be  a  principal officer.  What is, however, contended is that the definition of  an officer given in the Companies Act is  an  artificial definition and is only for the purposes of the Companies Act and  not for the Code of Civil Procedure.  The appeal  court did not accept this contention and was of the opinion  that, the definition of an officer given in the Companies Act  can also  be  utilised  for the purpose of  the  Code  of  Civil Procedure   and   we  think,that  that  view   is   correct. Therefore, when the service in this case was effected on the managing  agents of the mills it was effected on one of  the principal officers of the corporation and 835

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would  be  a  good service under O. XXIX, r.  2  But  it  is contended that the intention behind O. XXIX,    r. 2 is that the service must be on a human being and that O.  XXIX, r. 2 does  not  contemplate service on one  corporation  for  the purpose of securing service on another corporation.  In this connection  reliance  is placed on rr.  I and 3 of  0.  XXIX where it is urged that the same words occur and it is  clear that  these  rules  contemplate  that  the  other  principal officer  mentioned  therein  must be a  human  being.   This contention  was  urged  before  the  appeal  court  and  was rejected by it-and in our opinion, rightly.  It is true that under rr.  I and 3, the principal officer envisaged must  be a human being, but that conclusion follows from the  setting in  which  these words appear in these two  rules.   Rule  I relates  to the signature and verification of a pleading  by the  secretary, director or other principal officer  of  the corporation while r. 3 provides that a court may require the personal  appearance of the secretary or of any director  or other  principal officer of the corporation.  It is  obvious therefore  from  the  setting  in  which  the  words  "other principal officer" appear in these two rules that he must be a  human being, for signature and verification in  one  case and  personal appearance in another can only be by  a  human being.   But  rr.   I and 3 do not define  who  a  principal officer  is.   Therefore, even though in these two  rules  a principal officer must be a human being, it does not  follow that in r. 2 also he must be a human being.  Rule 2  relates to  service  and  cl. (b) thereof  clearly  shows  that  the service  to be effected need not necessarily be on  a  human being connected with the corporation, for under el. (b)  the service will be effective if the summons is left or sent  by post  addressed to the corporation at the registered  office or if there is no registered office then at the place  where the corporation carries on business.  Therefore, for service to  be  effective it is not necessary that summons  must  be served  on some human being connected with the  corporation. Nor  do  we  see anything in 0. XXIX  which  would  militate against our holding that the service on one corporation  may be made by serving 836 another  corporation which may be the principal  officer  of the  first  corporation.  Once it is clear in  view  of  the definition of an " officer" ins. 2 (11) of the Companies Act that  a managing agent is an officer and when it is  obvious considering the nature of the duties of a managing agent  of the  corporation  that  it must be held to  be  a  principal officer,  service  on the managing agent  of  a  corporation would be effective service for the purpose of 0. XXIX, r. 2. We therefore agree with the appeal court that the orders  of requisition  in this case having been undoubtedly served  on the  managing  agents of the mills as such  there  has  been proper  service of the said orders on the mills as  required by  r.  119 of the Rules.  Therefore as the service  on  the mills  through the managing agents was good  service  within the  meaning  of  r.  119 read with 0. XXIX,  r.  2,  it  is unnecessary  to consider the further question whether it  is good  service  within the meaning of r. 119 (1-B).   We  are therefore in agreement with the appeal court that the orders of requisition were properly and validly and duly served  on the  mills through the managing agents and  therefore  these orders  effected a valid requisition of the goods  mentioned in  the  schedules attached thereto.  In this  view  Appeals Nos. 314 to 316 fail and are hereby dismissed. Now we turn to the appeal of the Union of India with respect to  acquisition.   It is not disputed that on the  same  day

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(namely,  September  30,  1946) notice of  the  decision  to acquire  the  requisitioned  goods was served  on  the  same managing  agents.  Here again in the heading of  the  notice only  the name of the managing agent was  mentioned  without specifying in so many words that the communication was being addressed  to the managing agents corporation  concerned  as managing  agents of such and such mills.  But it is  not  in dispute  that as in the case of orders of requisition so  in the  case  of notices of acquisition there  was  a  schedule attached and that schedule mentioned that acquisition was of goods  held by the jute mills under the managing  agency  of the  corporation to which the notice was addressed  and  the names 837 of the mills whose managing agents the addressed corporation was,  were  also  mentioned in the schedule.   It  is  clear therefore  that  the notice of the decision to  acquire  was given to the various managing agents of the various mills in their capacity as managing agents of the mills specified  in the  schedule and the question is whether the notice was  in accordance  with  r. 75-A (2).  Rule 75-A(2)  provides  that after the property has been requisitioned the Government may acquire it by serving on the owner thereof a notice  stating that the Government has decided to acquire it.  Further sub- r.  (3)  of  r.  75-A  lays down  that  where  a  notice  of acquisition  has  been  served on the  owner,  then  at  the beginning  of the day on which the notice is so  served  the property  shall vest in Government free from  any  mortgage, pledge, lien or other similar encumbrance and the period  of the  requisition thereof shall end.  Sub-rule (2)  therefore requires  that  there should be a service of the  notice  of acquisition on the owner of the property requisitioned.  Two questions  therefore  immediately  arise  in  view  of   the provisions of r. 75-A (2), namely, (1) that there should  be a  service  of the notice on the owner, and  (2)  that  this service  should be in accordance with r. 75-A (2).  If  both these conditions are satisfied, r. 75-A (3) comes into  play and  the  property  vests  in  the  Government  as  provided therein. The  first  question therefore that arises  is  whether  the notice  in  this  case  was  served  on  the  owner  of  the requisitioned   goods.   The  argument  on  behalf  of   the defendants is that the requisitioned goods did not belong to the  mills and that the real owners were the holders of  the pucca delivery orders, and as there was no service of notice on  them, there could be no acquisition under r.  75-A  (3). Reliance  in this connection is placed on  Anglo-India  Jute Mills  Co.’s case (1).  In that case it was held that  "  by the  usage  of the jute trade in  Calcutta,  pucca  delivery orders are issued only on cash payment, are passed from hand to  hand by endorsement and are sold and dealt with  in  the market as absolutely representing the goods to which (1)  (1910) I.L.R. 38 Cal.  I27. 838 they relate." Therefore, it is urged that the owners of  the goods were the holders of the pucca delivery orders and  not the  mills even though the goods were in the  possession  of the  mills  at  the time when notices  Of  acquisition  were issued.   Now  it is not in dispute so far  as  these  pucca delivery orders with which we are concerned in these appeals are concerned that though holders thereof pay for the  goods specified therein, at no time till actual delivery is  given is  there  any  appropriation of the  goods  either  to  the contract  or the delivery orders.  In spite however  of  the absence of such appropriation, the holders of pucca delivery

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orders are regarded by the trade as the owners of the  goods specified therein and as held in The Anglo-India Jute, Mills Co.’s  case (1) these pucca delivery orders are passed  from hand  to hand by endorsement and are sold and dealt with  in the  market  as absolutely representing the goods  to  which they relate.  The question therefore that arises is  whether the property in the goods represented by the pucca  delivery orders  can be said to have passed to the  holders  thereof, when they receive them. The  contention  on  behalf of the Union of  India  is  that property  in the goods cannot pass in law to the holders  of the  pucca  delivery  orders till  the  goods  are  actually appropriated to the particular order; therefore, as in  this case  it  is  not in dispute that  no  goods  were  actually appropriated  towards the pucca delivery  orders  concerned, the  property  in  the goods did not  pass  to  the  holders thereof  but  was  still in the  mills.   Reliance  in  this connection  is placed on s. 18 of the Indian Sale  of  Goods Act, go.  III of 1930.  That section lays down that "  where there is a contract for the sale of unascertained goods,  no property in the goods is transferred to the buyer unless and until the goods are ascertained." In the present case, as we have  already  said  it is not in  dispute  that  the  goods covered by the pucca delivery orders are not ascertained  at the  time  such orders are issued and,  ascertainment  takes place  in  the  shape of appropriation when  the  goods  are actually delivered in compliance (1)  (1910) I.L.R. 38 Cal. 177. 839 therewith.   Therefore, till appropriation takes  place  and goods are actually delivered, they are not ascertained.  The contract therefore represented by the pucca delivery  orders is  a  contract for the sale of unascertained goods  and  no property in the goods is transferred to the buyer in view of s.  18  of the Indian Sale of Goods Act till the  goods  are ascertained by appropriation, which in this case takes place at  the time only of actual delivery.  The appeal  court  in our opinion was therefore right in holding that the property in  the goods included in the pucca delivery orders did  not pass to the holders thereof in view of s. IS of the Sale  of Goods Act in spite of the decision in the case of the Anglo- India  Jute Mills Co. (1).  What that case decided was  that in  a suit between a holder of a pucca delivery order-be  he the  first holder or a subsequent holder who  has  purchased the pucca delivery order in the market- and the mills, there will  be  an  estoppel and the mill will  be  estopped  from denying that cash had been paid for the goods to, which  the delivery order related and that they held the goods for  the holder  of  the pucca delivery order.  That  case  therefore merely  lays down the rule of estoppel as between  the  mill and  the  holder of the pucca delivery order and in  a  suit between  them  the mill will be estopped  from  denying  the title of the holder of pucca delivery orders; but that  does not  mean that in law the title passed to the holder of  the pucca delivery order as soon as it was issued even though it is not disputed that there was no ascertainment of goods  at that  time and that the ascertainment only takes place  when the  goods are appropriated to the pucca delivery orders  at the  time of actual delivery.  The appeal court was  in  our opinion right in holding that the effect of the decision  in the case of Anglo-India Jute.Mills Co. (1) was not that  the property in the goods passed by estoppel and that that  case only  decided that as between the seller and the  holder  of the  pucca delivery order, the seller will not be  heard  to say  that there was no title in the holder of  the  delivery

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order.  That case was not dealing with the question of title (1)  (1910) I.L.R. 38 Cal. 127. 840 at  all  as was made clear by Jenkins C.J.  but  was  merely concerned  with estoppel.  In the present case the  question whether the Government of India will be estopped is a matter which we shall consider later; but so far as the question of title is concerned there can be no doubt in view of s. 18 of the  Sale  of Goods Act that title in these  cases  had  not passed  to  the  holders of the  pucca  delivery  orders  on September 30, 1946, for the goods were not ascertained  till then,  whatever  may be the position of the holders  of  the pucca  delivery orders in a suit between them and the  mills to enforce them. The next question then is whether the Government of India is also estopped from challenging that the title passed to  the holders of the pucca delivery orders as soon as they got the delivery  orders.   Sarkar J. seems to have taken  the  view that as the Government of India was claiming under the mills and  had stepped into the place of the mills by  acquisition and was claiming ownership through the mills, it would  also be  estopped from denying the title of the holders of  pucca delivery orders in the same way as the mills through whom it was claiming.  The appeal court on the other hand held  that the  Government of India was not claiming through the  mills and  therefore  would not be estopped like  the  mills  from disputing  the  title of the holders of the  pucca  delivery orders.  We are of opinion that the view of the appeal court is  correct.  The Government was not acquiring the  property through  the owners but under the power given to it  by  the statute, namely, the Defence of India Act and the Rules made thereunder.   It  did not acquire merely the rights  of  the owners  of  the property but the whole  property.   This  is clear from r. 75-A (3) which lays down that "where a  notice of  acquisition is served on the owner of the property  then at  the  beginning  of the day on which  the  notice  is  so served, the property shall vest in Government free from  any mortgage,  pledge, lien or other similar encumbrance."  This shows  clearly that what the Government is  acquiring  under the  statute is a kind of paramount title and not any  title derived from any owner, for 841 title derived from the owner would not be (for example) free from mortgage, etc.  Therefore when Government takes  action to acquire the requisitioned property under sub-r. (2) of r. 75-A  by  serving a notice of its decision to do so,  it  is acquiring  the whole property under the statute and  is  not making any claim to the property through the mills.  Thus it is  not merely the rights of the owners that the  Government acquires; it acquires the whole property free from all kinds of encumbrances.  What is thus acquired under the Defence of India Rules is no particular person’s right but the totality of the rights in the property.  It cannot therefore be  said that. the Government of India when it takes action under  r. 75-A  (2)  is  claiming through  anybody:  it  acquires  the totality  of  the rights in the property by  virtue  of  the power   vested  in  it  by  the  statute,  eliminating   all subsisting  private rights.  There can in such a case be  no estoppel against the Government of India qua the holders  of the  pucca delivery orders, for the Government of  India  is not  stepping into the shoes of the mills but  is  acquiring title  which is paramount in nature.  Therefore even  though there  may be an estoppel against the mills in view  of  the decision of The Anglo-India Jute Mills Co. (1), there can be no estoppel against the Government of India.  Further as  in

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law the property had not passed to the holders of the  pucca delivery  orders in the circumstances of this case,  it  was not necessary to serve them with notices under r. 75-A  (2), for  in law the owners were the mills and it was  sufficient if notices were served on them.  We may incidentally make it clear  that  the decision in the case  of  Anglo-India  Jute Mills Co. (1) would still be good law in an appropriate case where the question of estoppel can rightly arise. "  In  view of the foregoing discussion, the  conclusion  at which  we  arrive is that on September 30, 1946,  the  mills were  in  law  the owners of the  property  which  had  been requisitioned   and  with  respect  to  which   notices   of acquisition  were  given  on the same  day.   Therefore  the notice  required under r. 75-A (2) had to be given  only  to the mills. (1) (1910)     38 Cal. 127. 842 The  question  then which arises is whether due  notice  was given to the mills under r. 75-A (2).  The appeal court held that  strict compliance with the provisions of the  rule  by which  such  transfer  of  ownership  can  be  effected  was necessary.   It  further  held  that  as  notices  were  not addressed  in  so  many  words to  the  managing  agents  as managing  agents  of  the various mills, there  was  no  due service  as required by r. 75-A (2) and therefore there  was no  acquisition following on the service of the  notices  in this   case.   The  first  question  that  arises  in   this connection  is the manner in which notice has to  be  served under  r. 75-A (2).  Now all that r. 75-A (2) says’ is  that notice  of  the decision to acquire the property has  to  be served on the owner thereof (except in certain circumstances with  which  we are not concerned).  The contention  of  the learned Attorney-General on -behalf of the Union of India is that.  a notice under r. 75-A (2) has also to be  served  in the  manner  provided  in  r. 119  and  that  therefore  the provisions  of r. 119 (1-B) would also apply to  service  of such  a notice.  On the other hand it has been contended  on behalf  of the defendants that r. 119 refers to  service  of orders in writing and r. 75-A(2) does not speak of an  order in writing as is the case in r. 75-A(1).  We do not think it necessary  for  purposes of this case to  decide  whether  a notice  stating that the Government has decided  to  acquire the  requisitioned  property  is  an  order  in  writing  as contemplated  under r. 119.  Assuming that it is not so,  it still remains to be seen how a notice of the kind  envisaged in  r.  75-A  (2) has to be served on  a  corporation.   The appeal  court  was of the view that as r. 75-A (2)  did  not provide  for the manner of service and as in its opinion  r. 119 did not apply, the service of a notice under r. 75-A (2) must   be  in  a  reasonable  manner.   Proceeding  on   the assumption  that r. 119 does not apply, it seems to us  that the view of the appeal court that a notice under r. 75-A (2) must be served in a reasonable manner is correct.  What then is this reasonable manner of service of notice under r.  75- A(2)?   In  this  connection reference may be  made  to  two provisions in two other Acts.  The first 843 is a provision in s. 148 of the Indian Companies Act,  1913, which was then in force.  That section provides that-               "  a document ’may be served on a  company  by               leaving  it at, or sending it by post to,  the               registered office of the company.  "               The  other provision is 0. XXIX, r. 2  of  the               Code of Civil Procedure, which we have already               considered.   We may however read the  opening

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             words of this rule for this purpose.  They are               as follows:-               "   Subject   to   any   statutory   provision               regulating service of process, where the  suit               is  against a corporation the summons  may  be               served... " It  will be seen that r. 2 of 0. XXIX of the Code  of  Civil Procedure  is subject to any statutory provision  regulating service of process and where there is any specific statutory provision  r.  2 would not be applicable.   The  only  other statutory provision is in s. 148 ibid.  But that  provision, as  the  words  themselves  show,  is  merely  an   enabling provision and it nowhere lays down that the method mentioned in  s. 148 is the only method of serving all documents on  a company.   The  section  lays down that a  document  may  be served  on a company by leaving it or sending it by post  at the  registered  office of the company.   But  the  language shows  that  that  is  not the  only  provision  nor  is  it imperative that service can be effected in the way mentioned in  that  section, and in no other way.  If  that  were  the intention this section of the Companies Act would have  been very  differently worded.  We therefore find that  there  is one enabling,.provision in s. 148 of the Companies Act as to the manner in which documents may be served on a company  or a  corporation.  Order XXIX, r. 2 lays down  another  method also  in  addition  which courts  may  employ  in  effecting service  on a corporation.  To our mind either of the  modes specified in s. 148 of the, Indian Companies Act or 0. XXIX, r. 2 of the Code of Civil Procedure is a reasonable mode  of effecting service on a company.  It is said that 0. XXIX, r. 2  applies to a case of a suit by or against a  corporation. That  is undoubtedly so. But what is good service  in  suits would in our opinion 844 be  reasonable  service  for the purpose  of  r.  75-A  (2). Therefore, notices under r. 75-A (2) could be served on  the mills  either  in  the  manner provided in  a.  148  of  the Companies  Act or in the manner provided in 0. XXIX, r.2  of the  Code  of  Civil Procedure.  In  this  case  the  manner employed  for  the service of notices under r. 75-A  (2)  is that  provided  in 0. XXIX, r. 2 (a), namely,  by  effecting service  on the principal officer of the mills, namely,  the managing  agents.   We have already considered  whether  the orders  of requisition on the various managing  agents  were duly  served and have held that it was so.  We fail  to  see why what was good service under 0. XXIX, r. 2 in the case of orders  of  requisition  would  not be  good  service  or  & reasonable  way  of  service  in  the  case  of  notices  of acquisition,  for  it is not in dispute that  the  two  were served  on  the  same  day one  after  the  other  and  were substantially  the same.  There was the same defect  in  the two  communications, namely, the heading where the  name  of the managing agent was mentioned did not contain in so  many words  that it was being addressed " the managing  agent  of such and such mill, but the schedule attached made it  clear that was addressed as managing agent of those mills both for the  purpose  of requisition as well as for the  purpose  of acquisition.   The appeal court seems to think  that  though this kind of service was good for the purpose of requisition it  was  not good for the purpose  of  acquisition,  because where acquisition was concerned it was necessary that  there must  be strict compliance with the manner of service,  that is, the heading should have also contained that the managing agents were being addressed &a managing agents of particular mills.  We are of opinion that this view of the appeal court

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is not correct and that what was good service in the case of orders of requisition was also good service in the matter of notices  of acquisition, for in substance the  two  services were  effected exactly in the same manner on  the  principal officer  of the mills, which’in one case were in  possession of the goods and in other were owners of the goods. - We are therefore  of  opinion  that  service  of  the  notices   of acquisition in this case 845 on the managing agents of the mills was effective service on the  mills  as owners for the purpose of r.  75-A  (2).   In consequence r. 75-A (3) would apply and the property in  the goods  passed  to the Government of india on  September  30, 1946.  The appeal of the Union of India therefore is allowed and  a  declaration is granted that the goods  were  validly requisitioned   and   acquired  and  that  the   orders   of requisition  and  notices  of  acquisition  were  valid  and binding   on  the  respective  defendants,  and  the   goods specified  therein  vested  in the Government  of  India  on September 30, 1946. As  to  costs,  it  appears that  this  litigation  was  due entirely  to  the  defect  in the form  of  address  of  the requisition  orders and the notices of acquisition.  In  the circumstances  we  order  parties to bear  their  own  costs throughout. Civil Appeals Nos. 314 to 316 of 1957 dismissed. Civil Appeal No. 778 of 1957 allowed.