Retrial required where factual findings conflict and title to shares depends on completed transfer and communication

A Bench under section 38 of the Presidency Small Cause Courts Act should not itself replace unsupported and conflicting trial findings with fresh factual determinations; the proper course is to order a retrial. The document also states that title to shares under the Sale of Goods Act passes only when the transfer endorsement is completed and communicated, so that the shares are appropriated as specific goods in a deliverable state. The superfluous signature of a judge who had not heard the matter did not invalidate the judgment where it was in substance prepared and signed by the judges who actually heard it.

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Issues: (i) Whether the judgment of the Small Cause Court Bench was invalid because the third Judge, who had not heard the matter, also signed it; (ii) whether, in proceedings under section 38 of the Presidency Small Cause Courts Act, the proper course was to set aside the conflicting factual findings and direct a fresh trial on whether title to the shares had passed to the plaintiff under the Sale of Goods Act.

Issue (i): Whether the judgment of the Small Cause Court Bench was invalid because the third Judge, who had not heard the matter, also signed it.

Analysis: The judgment was in substance prepared by the two Judges who heard the application and signed by them. The superfluous signature of the absent third Judge, appended by error, did not convert the decision into a judgment of a Judge who had not participated in the hearing.

Conclusion: The judgment was not invalid on that ground.

Issue (ii): Whether, in proceedings under section 38 of the Presidency Small Cause Courts Act, the proper course was to set aside the conflicting factual findings and direct a fresh trial on whether title to the shares had passed to the plaintiff under the Sale of Goods Act.

Analysis: A Bench acting under section 38 does not exercise appellate powers to finally determine disputed questions of fact. Where the trial findings are unsupported and the material facts are in conflict, the proper course is to order a retrial rather than record fresh findings. On the merits, title would pass only if the transfer endorsement had been completed and communicated so that the shares were appropriated as specific goods in a deliverable state under sections 20 and 23 of the Sale of Goods Act.

Conclusion: The order directing fresh trial was set aside and a fresh trial was ordered for determination of the essential facts.

Final Conclusion: The revision petitions succeeded, the impugned order was vacated, and the dispute was remitted for retrial on the decisive factual question of transfer and passing of title in the shares.

Ratio Decidendi: Under section 38 of the Presidency Small Cause Courts Act, a court should not itself record fresh findings of fact in place of unsupported trial findings, but should direct a retrial; and title in unascertained shares passes only when the transferor has completed the transfer so as to place the goods in a deliverable state and communicated that completion.

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