JUDGMENT
G.R. Majithia, J.
1. The petitioner entered into agreement with respondent No. 1 on March 17, 1980 for the supply of Turbo Alternator Set (for short, the ‘machinery’) for a price of Rs. 18,00 009/-. The petitioner despatched the machinery on June 16 1980 from Bangalore to Mohindergarh through M/s O Kay Transport Corporation. The documents relating to the despatch of machinery namely, Invoice No. 2/79-80/232, dated 16-6-1980 for Rs 12 80 448/- Demand Draft No. B/29-80/232, dated 16-6-1980 for Rs 9 53 946/-‘ and RR/GR No. 00031, dated 16-6-1980 were sent through State ‘Bank of Patiala, Nehru Place, New Delhi to the Union Bank of India Gandhinagar Branch, Bangalore In the letter it was mentioned that if the documents are not retired within the stipulated period the petitioner had to be contacted and for further instructions The carrier unloaded the machinery at the works of respondent No. 1. The petitioner was informed by their Banker vide letter dated August 25 1981 that respondent No. I had failed to make payment and retire the’ documents. The petitioner vide letter dated April 9, 1981 requested respondent No. 1 to permit them to remove the machinery. Respondent No. 1 was ordered to be wound up by an order of this Court dated April 8, 1983 passed in C. P. No. 64 of 1981. The petitioner addressed a communication to the Official Liquidator for permission to lift the machinery. Respondent No. 2 and some other financial institutions have a charge on the properties pledged with them. In these premises a prayer was made that a declaratory decree be passed in favour of the petitioner to the effect that it was owner of the machinery and respondent No. 1 did not acquire the proprietary rights since the invoice and R.R./G.R. were not retired through the bank and a consequential relief for permission to remove the machinery from the premises of respodent No. 1.
2. Respondent No. 1 controverted the allegations made in the petition and pleaded that the petitioner had been paid more than 30% of the total sale consideration of the machinery. Consequently, the petitioner was not entitled to the declaration sought for. The petitioner was not a secured creditor and had no right on the property of the respondent-company. Respondent No. 1 had paid a sum of Rs. 6,40,448/-, which represents almost 30% of the total sale consideration of the machinery which is alleged to have been supplied by the petitioner. It was also pleaded that there is no stipulation in the agreement that in case 70 per cent of the sale consideration is not paid, the petitioner will be entitled to the return of the machinery.
3. From the pleadings of the parties, following issues were framed:-
1. Whether the suit for declaration simpliciter is competent? OPP
2. Whether the present suit is not maintainable because 30% of the sale price had been paid to the plaintiff by way of earnest money ? OPD
3. Whether the suit is within limitation ? OPP
4. Whether the ‘Turbo Alternator set’ is the property of the plaintiff and he is entitled to remove it from the premises of the Respondent. Issue No. (1) was treated as a preliminary issue.
4. On March 6, 1987, issue No. 1 was recast and it reads thus :-
“Whether the suit in the present from is competent ? OPP.”
5. The parties did not lead any evidence on issue No. 1. The petitioner appended a copy of the agreement dated March 17, 1980 with the petition. Para 4(a) of the petition reads as under :-
“That on 17-3-1980, the petitioner entered into an agreement with the Respondent No. 1 company for the supply of Turbo Alternator Set for a price of Rs 18,00,000/- (Rupees Eighteen lacs only)/Rs 17,75.000/- (Rupees Seventeen lacs seventy five thousands only). The said agreement is annexed, hereto as Annexure P-3.”
6. In the corresponding reply, respondent No. 1 has admitted the correctness of this paragraph. Thus, the contents of the agreement dated March 17, 1980, referred to in para 4(a) of the petition, are impliedly admitted. The agreement provides for the terms of payment, the total price of the machinery and how it is to be delivered. The seller ensured the successful working of the machinery. It also contains a guarantee clause. There is no provision regarding seller’s lien for retaining or recovering possession of the machinery till total sale price or major portion thereof is paid by the buyer. Admittedly, the machinery was delivered to respondent No. 1 before April 9, 1981 On that date, a letter was addressed by tie petitioner to respondent No. 1 for permission to lift the machinery. Respondent No. 1 could not take any steps to permit the petitioner to life the machinery as the same stood hypothecated with respondent No. 2. On an application moved by respondent No. 2, the properties of respondent No. 1 were ordered to be attached by an order of this Court passed on October 30, 1981. The instant petition was filed on March 30, 1984.
7. The precise question for consideration is; whether the petitioner can exercise seller’s lien to retain or recover possession of machinery in question for non-payment of total sale price. The lien is based on the unpaid seller’s possession of the goods and not on title and unless there is a possession, there is no lien. The seller can preserve his lien over the goods stored in the buyer’s place if he can remove those goods , without the consent of the latter. The right of lien for unpaid purchase money subsists only so long as the seller has the possession of the goods. Once the seller delivers possession of the goods to the buyer, the lien disappears. When the buyer obtains possession, both the right of lien and stoppage in transit are lost and the seller’s remedy is only for recovery of the price. Moreover, the seller’s lien has been waived expressly. A brief reference to the terms of agreement has been made in the proceeding paragraph and there is no provision for retaining sellers lien. Once the possession has been delivered to the buyer and part payment of the sale price has been received by the seller, the remedy of the latter, if any, is for recovery of the balance sale price and not for return of the machinery
8. Thus for the reasons aforementioned, I hold that the suit is not maintainable. Issue No. 1 is answered against the petitioner. Resultantly, the petition is dismissed with no order as to costs.