Judgment Ramaswami, J. 1. In Miscellaneous Judicial Case No. 713 of 1956 the petitioner is a joint stock limited company having its registered office at Rocklinghausas in West Germany. The petitioner entered into a contract with the Sindri Fertilisers and Chemicals (Private) Limited (hereinafter to be called the "owner"), being a private limited liability company incorporated under the Indian Companies law and having its registered office at Sindri in the State of Bihar, for assembling and installing machinery, plant and accessories for a complete coke oven battery at Sindri for an all inclusive price of Rs. 2,31,50,000. The contract was executed on the 19th December, 1953, and a copy of the contract is annexure A to the application. It was agreed between the parties that the performance of the contract would be split up into two distinct categories, namely, the German section and the Indian section, and that the German section would consist of delivery of materials from Germany free on board European port, cost of technical drawings, technical advice and the placing at the owners disposal of the services of German specialists for certain period. The total consideration for the German section was assessed at Rs. 1,31,50,000. The Indian section consisted of deliveries and services to be rendered in India, sea freight, landing and clearing charges and transport of materials to the site, Indian import customs duty and the cost of boarding and lodging of German specialists. The cost of the Indian section was assessed at Rs. 1,00,00,000. On the 20th of March, 1956, the Superintendent of Sales Tax issued a notice under Sec.13(5) of the Bihar Sales Tax Act requiring the petitioner to pay sales tax for the years 1952 to 1956 and also to produce books of account and records of sales. The case of the petitioner is that the Superintendent of Sales Tax has no jurisdiction to impose sales tax on the supply of goods in execution of a contract and that the definitions of "dealer" in Sec.2(c), of "goods" in Sec.2(d), of "sale" in Sec.2(g) and of "sale-price" in Sec.2(h) of the Bihar Sales Tax Act are unconstitutional and beyond the competence of the Bihar Legislature in so far as they purport to tax execution of building contracts. Accordingly the petitioner seeks a writ in the nature of certiorari for quashing the proceedings taken by the respondents under Sec.13(5) of the Bihar Sales Tax Act for assessment of sales tax. 2. In Miscellaneous Judicial Case No. 819 of 1956 the petitioner is the Coke Oven Construction Company (Private) Limited, representing the Indian section of the contract dated the 19th December, 1953. The petitioner in this case states that it was treated by the owner as the assignee of the West German Company, the contractor, for the purpose of performing the Indian section of the said contract, and the petitioner did in fact execute the said Indian section of the contract and was paid by the owner the stipulated consideration money, namely, more or less Rs. 1,00,00,000 for the Indian section. The performance of the Indian portion of the contract occupied the period of time from about 1st of April, 1953, to the 31st March, 1956. Assessment of sales tax was made by the respondent upon the petitioner for the period from the 11th of February, 1953, to the 31st of March, 1953. Against this assessment the petitioner has filed a revision application to the Board of Revenue. There was a second assessment for the period from the 1st April, 1953, to the 31st March, 1954. Against this assessment an appeal was preferred by the petitioner which is pending before the Deputy Commissioner of Sales Tax. For the period from the 1st of April, 1954, to the 31st of March, 1956, notices have been issued by the respondent under Sec.13(5) of the Bihar Sales Tax Act and no assessment has been made for this period. The petitioner in Miscellaneous Judicial Case No. 819 of 1958 prays for a writ in the nature of certiorari to quash the proceedings taken by the respondent for assessment of sales tax for the period from the 1st of April, 1954, to the 31st of March, 1956. Learned . counsel on behalf of the petitioner stated that he did not pray for quashing the assessment which is the subject-matter of appeal before the Deputy Commissioner of Sales Tax and of revision before the Board of Revenue. 3. Mr. P. R. Das submitted that the case of the petitioner in Miscellaneous Judicial Case No. 713 of 1956 is identical with that in Miscellaneous Judicial Case No. 819 of 1956. 3. Mr. P. R. Das submitted that the case of the petitioner in Miscellaneous Judicial Case No. 713 of 1956 is identical with that in Miscellaneous Judicial Case No. 819 of 1956. It was submitted by learned Counsel that there was a building contract for a lump sum for setting up of a coke oven battery at Sindri, and the Sales Tax Authorities had no jurisdiction to impose sales tax on a contract of this description. In this connection learned Counsel referred to the definition of the expression "contract" in Sec.2(b) of the Bihar Sales Tax Act and the definitions of the expressions "dealer" in Sec.2(c), "goods" in Sec.2(d), "sale" in Sec.2(g) and "sale price" in Sec.2(h). It was contended that these definitions were unconstitutional and beyond the competence of the Bihar Legislature in so far as it seeks to impose a tax on building contract for a lump sum. In support of his argument learned Counsel referred to a recent decision of the Supreme Court in State of Madras V/s. Gannon Dunkerley and Company (Madras) Limited [1958] 9 S.T.C. 353 where it was held that the expression "sale of goods" in Entry 48 in List II of Schedule VII of the Government of India Act, 1935, cannot be construed in its popular sense but must be interpreted in its legal sense and should be given the same meaning which it has in the Sale of Goods Act, 1930. It was also held by the Supreme Court that in the case of building contract, which is one entire and indivisible, there was no sale of goods and it was not within the competence of the Provincial Legislature under Entry 48 to impose a tax on the supply of the materials used in such a contract, treating it as a sale. It was contended by Mr. P. R. Das that the present case falls within the principle laid down by the Supreme Court in State of Madras V/s. Gannon Dunkerley and Company (Madras) Limited [1958] 9 S.T.C. 353 and so the petitioners in Miscellaneous Judicial Case No. 713 of 1956 and Miscellaneous Judicial Case No. 819 of 1956 are entitled to a writ in the nature of certiorari to quash the , proceedings taken by the respondent under Sec.13 of the Bihar Sales Tax Act. Learned Counsel also referred to the terms of the contract printed at page 20 of the paper book and to the opening clause of 0the contract which is to the following effect: Whereas the owner has agreed with the contractor that the contractor shall set up a complete coke oven battery ready for production, as well as by-products plant with a minimum output of 600 tons/ 24 hours of coke made by the filling process or by the stamping process, the quantity being calculated in either case on the basis of an average water content of 3% in the coke, at Sindri in the State of Bihar at a site selected by the owner and shall erect and construct buildings, plants and machineries and deliver and supply accessories and articles from Germany and also locally from India and render services fully described in the First Schedule hereinafter appearing, subject to guarantees to be fulfilled on the part of the contractor and terms and conditions mutually agreed and settled and mentioned in the Second Schedule hereinafter appearing, for an all inclusive price of Rs. 2,31,50,000 (Rupees two hundred and thirty-one lakhs and fifty thousand only) in accordance with the preliminary site plan No. B. 4760/5002 delivered by the contractor on the 6th June, 1952, to the owner and on the terms and conditions and their respective obligations specified below : 4. I do not accept the argument of Mr. P. R. Das that the present case falls within the ratio decidendi of the case decided by the Supreme Court in Stale of Madras V/s. Gannon Dunkerley and Company (Madras) Limited [1958] 9 S.T.C. 353. As the records stand at present, I do not consider that the petitioners in either Miscellaneous Judicial Case No. 713 of 1956 or Miscellaneous Judicial Case No. 819 of 1956 have made out a case for grant of a writ of certiorari to quash the proceedings taken by the respondent under Sec.13 of the Bihar Sales Tax Act. The reason is that there is a vital distinction between the contract which was the subject-matter of consideration in the Supreme Court case, State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd. [1958] 9 S.T.C. 353 and the contract between the owner and the German Company in the present case. The reason is that there is a vital distinction between the contract which was the subject-matter of consideration in the Supreme Court case, State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd. [1958] 9 S.T.C. 353 and the contract between the owner and the German Company in the present case. In the Supreme Court case it was held that the title to the materials used in execution of the contract did not pass to the other party by virtue of any clause in the contract but the title to the materials passed to the other party to the contract on the theory of accretion. In the present case there is an express provision in the contract to the effect that all materials and plant brought by the contractor on the site under the German and Indian sections would immediately they are brought upon the site become the owners property. The material clause in the contract states as follows : All materials and plant brought by the contractor upon the site under the German and Indian sections in connection with the construction of the Coke Oven and By-products Plant shall immediately they are brought upon the site become the owners property and the same shall not on any account whatsoever be removed or taken away by the contractor or by any other person without the owners prior authority in writing. Such of them as during the progress of the works will be rejected by the owner in accordance with the terms agreed upon between the contractor and the owner in this respect shall on such rejection cease to be the owners property. The contractor should indemnify the owner against all actions, claims and proceedings by any party on those materials and plant and against all expenses incurred by the owner in connection therewith. 5. It was submitted by Mr. P. R. Das on behalf of the petitioner that in order to constitute a sale in the legal sense it is not only necessary that there should be an agreement between the parties for the purpose of transfer of title of goods but there should also be a definite money consideration in the contract for each kind of property. It was argued that in the present case there is no definite price fixed in the contract. It was argued that in the present case there is no definite price fixed in the contract. On this point the learned Government Advocate said that in order to constitute a sale it is not necessary that a price should be definitely fixed in the document of contract but it is sufficient if the price of materials be left to be determined by the course of dealings between the parties. In this connection reference was made to Section 9 of the Sale of Goods Act, which is to the following effect: 9. (1) The price in a contract of sale may be fixed by the contract or may be left to be fixed in manner thereby agreed or may be determined by the course of dealing between the parties. (2) Where the price is not determined in accordance with the foregoing provisions, the buyer shall pay the seller a reasonable price. What is a reasonable price is a question of fact dependent on the circumstances of each particular case. 6. It was contended by the learned Government Advocate that the price of the articles sold can be gathered from the books of account of the petitioners and the price can be actually ascertained by the Sales Tax Authorities after the documents are produced by the petitioners. It was also submitted by the Government Advocate that the Sales Tax Authorities are not necessarily compelled to look only to the document of contract but the authorities can look to other documents like the account books and invoices to find out if the goods were paid for and if the prices were fixed in the course of dealings between the parties. In this connection the Government Advocate referred to a letter of the petitioner dated the 19th March, 1956 (annexure B), reproduced at page 102 of the paper book in Miscellaneous Judicial Case No. 819 of 1956, and pointed out that the petitioner in that case had admitted in that letter that the price of goods sold was Rs. 36,44,012. The relevant portion of the letter is to the following effect: Permit me to explain the position in little greater detail. The total receipts from Messrs Sindri Fertilisers and Chemicals Ltd. work out to Rs. 1,24,50,009-15-0. The entire receipts are not turnover or payments towards sales of any commodities effected by my client at all. 36,44,012. The relevant portion of the letter is to the following effect: Permit me to explain the position in little greater detail. The total receipts from Messrs Sindri Fertilisers and Chemicals Ltd. work out to Rs. 1,24,50,009-15-0. The entire receipts are not turnover or payments towards sales of any commodities effected by my client at all. Of this, according to our clients accounts and documentary evidence available to them in support thereof, Rs. 36,44,012 represents consideration and price of goods sold, supplied or delivered to Messrs Sindris ; about half of the rest are entirely for labour and of the other half for rendering services and/or handling materials, and/or non-commodity items for example consulting commission, customs duty, steamer freight, taxes, insurance and so on. 7. Lastly, Mr. P. R. Das made the submission that title to the goods passed in German ports as soon as the goods were placed on board the steamer, because the contract was an F.O.B. contract. I do not think that this argument is right. Under Sec.23 (2) of the Sale of Goods Act there is a presumption that title passes as soon as the goods are delivered to the carrier, but this presumption is subject to the express term embodied in the actual contract between the parties. This is made clear by Sec.19 of the Sale of Goods Act, which is to the following effect: 19. (1) Where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. (2) For the purpose of ascertaining the intention of the parties regard shall be had to the terms of the contract, the conduct of the parties and the circumstances of the case. (3) Unless a different intention appears, the rules contained in sections 20 to 24 are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer. 8. For these reasons I hold that the petitioners have not made out a case for grant of a writ under Article 226 of the Constitution to quash the proceedings taken by the respondent for the assessment of sales tax. 9. 8. For these reasons I hold that the petitioners have not made out a case for grant of a writ under Article 226 of the Constitution to quash the proceedings taken by the respondent for the assessment of sales tax. 9. I wish, however, to state that I do not express any concluded opinion on the question whether there is sale of materials liable to be taxed in the present case. The facts have not been fully investigated by the Sales Tax Authorities and the petitioners have not furnished all the account books and documents and other relevant information for the purpose of deciding this question. It would be open to the Sales Tax Authorities to investigate the facts and upon proper construction of the contract come to the finding whether, and if so to what extent, the petitioners are liable to pay sales tax. I have no doubt that in deciding this question the Sales Tax Authorities will keep in view the principle laid down by the Supreme Court in State of Madras V/s. Gannon Dunkerley and Company (Madras) Limited [1958] 9 S.T.C. 353.. 10. But, as I have already said, the petitioners have not made out a case for grant of a writ at this stage. I would accordingly dismiss both these applications. There will be no order as to costs. Choudhary, J. 11 I agree.