JUDGMENT K.S. Varma, J. - The above mentioned writ petitions raise common questions of law and fact. The petitioners in all the writ petitions are firms dealing in various articles. Under schemes framed by them they propose to sell certain articles on, what they call, `instalment' basis. The schemes were submitted to the Registrar of Firms, Societies and Chit Funds U.P., Lucknow for approval. The Registrar took the view that the schemes so submitted were hit by the Prize Chits and Money Circulation Schemes (Banning) Act, 1978, U.P. Act 43 of 1978 (hereinafter to be referred to as the Banning Act). The Registrar further directed that the schemes be wound up within a specified time. The petitioners in the writ petitions have challenged the order of the Registrar of Firms, Societies and Chit Funds, U.P., Lucknow, opposite party No. 2 on a number of grounds. 2. During the course of arguments, learned counsel for the petitioners in all the writ petitions have stated that Writ Petition No. 3265 of 1980 be treated as the leading case. 3. In most of the writ petitions referred to above Mr. P. N. Mathur appears for the petitioners. Some of the petitioners are represented by Mr. P. K. Khare. The arguments in the writ petitions were opened by Mr. P. N. Mathur followed by Mr. P. K. Khare. Learned counsel for the petitioners in other writ petitions adopted the arguments of Mr. P. N. Mathur and Mr. P. K. Khare. On behalf of the opposite parties, we heard Mr. Brijesh Kumar, the Additional Chief Standing Counsel. 4. In order to appreciate the controversy between the parties it would be appropriate to refer in detail the schemes launched by the petitioners. The scheme in writ petition No. 3265 of 1980 Annexure 1 in so far as it is relevant for the purposes of the case is reproduced below : "To : Managing Partner Northern India Refrigeration Co. Sir, I have understood that the object of this scheme is to provide me with a KELVINATOR REGRIGERATOR in monthly payments and I will also get the incentive of winning the Refrigerator in monthly draws after which I do not pay any further instalments. I am willing to join your scheme as per the terms and conditions overleaf. which I have understood. My details are given below :- Name. Age Father's name. I am willing to join your scheme as per the terms and conditions overleaf. which I have understood. My details are given below :- Name. Age Father's name. Residential Address Office Address Occupation Telephone No. Residence Office. Name of nominee & Address Relationship with Nominee. Age of Nominee. Signature of Nominee. Date Signature of Member. FOR OFFICE USE Permanent Serial No. Application - Accept/Reject First Receipt No. & Date ......... A/C. No. Introduced by Remarks OWN YOUR KELVINATOR SCHEME RULES. 1. Northern India Refrigeration Co. will be known as Company. 2. The membership fee is Rs. 15/- only, which is non-refundable. 3. This scheme is for Kelvinator Refrigerator Model K-135 Lts, the scheme price of which is Rs. 4500/- only (which is exactly the same retail price Ex-Lucknow, Kanpur or Bareilly). 4. The duration of the scheme is for 60 months, and the total number of draws will be 59 held every month. The first draw will take place at an initial payment of Rs. 75/ plus Rs. 15/- as membership fee. Thereafter, the members will deposit a sum of Rs. 75/- p. m. till the time a member is declared a winner in any draw, or maturity of the scheme. After all the 59 draws are over, the remaining members who have not been declared winners will get the Kelvinator by paying the last instalment of Rs. 75/-. For example the winner of the first draw will carry away a Kelvinator Refrigerator for just Rs. 75/- only AND WILL NOT HAVE TO PAY ANY FURTHER INSTALMENT TO THE COMPANY. Similarly the winner of the 2nd draw will get the Kelvinator for Rs. 150/-, the 3rd for Rs. 225/- and so on. 5. This is a Kelvinator sales promotion scheme and neither a Hire Purchase nor Lottery nor Chit fund type scheme, and the lucky draws are only incentives to members for making monthly advances for the purchase of the Refrigerator. Thus no claim by any member for cash refund will be entertained. 6. The company reserves the right to accept or reject any membership, without assigning any reason. 7. In case the total membership is not fully subscribed the members can still be recruited after start of the draws till a maximum of 499 members. The draws missed by such members will be given extra to such new member. 6. The company reserves the right to accept or reject any membership, without assigning any reason. 7. In case the total membership is not fully subscribed the members can still be recruited after start of the draws till a maximum of 499 members. The draws missed by such members will be given extra to such new member. However, the Company will at no stage keep memberships reserved in its own name, thus winner of every draw will go to actual members. 8 . .................... 9. The monthly winner from a draw will be entitled to get a Kelvinator Refrigerator after producing all previous receipts. 10 . ................. 11. A member who does not pay three consecutive instalments his name will be removed from the group and the Company will have all the rights to fill the place thus vacated by a member. Such a defaulter member may however rejoin the scheme after paying surcharge of Rs. 5/- extra per instalment. 12. A defaulter member who does not continue in the scheme can take a refund of his money at the end of his 60 month period after a deduction of 15% of the total value of the scheme, which is Rs. 675/-. 15. If a member wants to take delivery of a Refrigerator earlier during the duration of the scheme, he can do so only after he has paid 30 monthly instalments, and after paying the balance instalments in full. However, the member will still be entitled for the lucky draws and if in case the member is declared winner in any draw, then a refund will be given to him by the Company for the amount totalling the balance instalments in full. Such requests for delivery should be made in writing giving one month notice to the Company. 16. The member can take any bigger model Refrigerator or T. V. Set, by paying the counter price difference of the same. (Nos. 13 and 14 irrelevant). 5. It has been conceded by the learned counsel for the parties that the schemes in other petitions are similar in nature and the main question of law involved is whether the schemes in all the writ petitions are hit by the provisions of the Banning Act. (Nos. 13 and 14 irrelevant). 5. It has been conceded by the learned counsel for the parties that the schemes in other petitions are similar in nature and the main question of law involved is whether the schemes in all the writ petitions are hit by the provisions of the Banning Act. The relief claimed in all the writ petitions is that an order or direction in the nature of mandamus may be issued directing the State of Uttar Pradesh and the Registrar of Firms, Societies and Chit Funds, U.P. Lucknow to refrain from requiring the petitioners to submit the winding up plan of the scheme of sale under Rule 4 (1) of the Prize Chits and Money Circulation Schemes (Banning) (Uttar Pradesh) Rules, 1980. A prayer has also been made that the opposite parties be directed not to take steps for enforcing the closure of operation of the scheme or to prosecute them under the Act. 6. The petitioners' case is that in order to sell refrigerators on instalment, petitioner No. 1 advertised that it had started a scheme which provided for the sale of Kelvinator refrigerators on payment of monthly instalment. According to the petitioners those who joined the scheme will be able to get the refrigerator in 60 months if they continued to pay Rs. 75/- per month as instalment towards price and an initial payment of Rs. 15/- which was to cover certain expenses including membership fee, stationery and post etc. According to the petitioners the scheme is a Sale Promotion Scheme and was neither a hire purchase nor a lottery nor a chit fund. In order that regular payment of instalments may be made by those who joined the scheme. a further incentive was provided in drawing lots every month. The petitioners has characterised the scheme as a purely sale promotion scheme in which the customer had to pay the price of the refrigerator in instalments but the delivery was deferred until the full price was paid. 7. a further incentive was provided in drawing lots every month. The petitioners has characterised the scheme as a purely sale promotion scheme in which the customer had to pay the price of the refrigerator in instalments but the delivery was deferred until the full price was paid. 7. The nature of the scheme under challenge has been described in paragraph 5 of the writ petition as follows : "Upon an examination of the terms and conditions it would at once appear that the object of the scheme was purely that of sale and there was no element of any lottery or hire purchase in it, and it could not be considered to be a Money Circulation Scheme. Clause 15 of the said scheme clearly provided that if any customer intended to take delivery of a refrigerator immediately, then he could pay the entire price in full at any time during the continuance of the scheme and get the refrigerator." The contention of the petitioners is that the Scheme in question is not a Prize Chit within the meaning of the Banning Act. In paragraph 13 of the writ petition they have stated their case as follows :- "The essence of Prize Chit is that the promoter collects monies in lump sum or in instalments by way of contribution from the subscribers for the purpose of giving or awarding periodically or otherwise a prise or money which is not a Conventional Chit. It envisages that the promoter collects only for the purpose of giving a gift or refunding the money after expiry of a stipulated period." 8. Paragraph 16 of the petition in so far' as it is relevant for the case is quoted below : "Taking into consideration the ingredients of section 5 of the Sale of the Goods Act. The transaction purported to be covered by Annexures 1 and 2 is only a contract of sale in which the delivery of the refrigerator has beep postponed to a future date on the happening of a specified event and on the performance of such terms and conditions as are mentioned therein relating to payment of price in instalments. If delivery is to be made on the payment of price in instalments of the price, then there is nothing offensive in such an agreement." 9. If delivery is to be made on the payment of price in instalments of the price, then there is nothing offensive in such an agreement." 9. During the course of arguments in this petition, a supplementary affidavit was filed by the petitioners and in paragraph 6 of the said affidavit it was stated that the money so collected is utilised for obtaining the requisite number of refrigerators. The petitioners contention is that the scheme is neither a Money Circulation Scheme nor a Prize Chit Scheme within the meaning of the Banning Act. The respondents in their counter affidavit have stated that the scheme in question is a Money Circulation Scheme and a Prize Chit within the meaning of the Banning Act. 10. It has been contended by Mr. P. N. Mathur that the schemes launched by the petitioners are neither money circulation schemes within the meaning of section 2(c) of the Banning Act nor `Prize Chits' within the meaning of section 2(e) of the Banning Act. It is further contended that the schemes come within the definition of Conventional Chit as defined by section 2(a) of the Banning Act. In the alternative, it was contended that even if the schemes do not come within the ambit of conventional chit, it will not be hit by the Banning Act as the Schemes are not `Money Circulation Schemes' or `Prize Chits' within the meaning of section 2(c) and (e) respectively of the Banning Act. Mr. Mathur developed his argument by submitting that the scheme partakes of the nature of a contract of sale and is governed by the Sale of Goods Act, 1930. By reference to section 5 of the Sale of Goods Act, it was contended by Mr. P. N. Mathur that the contract of sale may provide for the immediate delivery of the goods or immediate payment of the price or both, or for the delivery or payment by instalments, or that the delivery or payment or both shall be postponed. It is contended that the payment of Rs. 75/- is instalment of price and the delivery of goods under the Scheme has been postponed till such time as all the instalments are paid up. It is contended that the payment of Rs. 75/- is instalment of price and the delivery of goods under the Scheme has been postponed till such time as all the instalments are paid up. It is thus contended on behalf of the petitioners that since the scheme is a contract of sale, the instalment paid by the member to the promoters of the Scheme is part of the price and the money so paid belongs to the promoters. He further contends that the term that the delivery of goods is postponed till the last instalment is paid, is permissible by section 5 of the Sale of Goods Act. 11. In this background, we proceed to examine the scheme quoted above. Paragraph 2 of the scheme provides that the membership fee for the scheme is Rs. 15/- which is not refundable. In paragraph 3 of the Scheme it has been mentioned that the price of Kelvinator Refrigerator Model K- 135 Lts. is As. 4500/-. Paragraph 4 of the scheme provides that the duration of the scheme is 60 months and the total number of draws will be 59 held every month. The first draw will take place at an initial payment of Rs. 75/- plus Rs. 15/- as membership fee. Thereafter, the members will deposit a sum of Rs. 75/- per month till the time a member is declared a winner in any draw or maturity of the scheme. After all the 59 draws are over, the remaining members who have not been declared winners will get the Kelvinator Refrigerator on payment of last instalment of Rs. 75/-. In paragraph S of the Scheme has been designated as a Sale Promotion Scheme. It has been clearly stated that it is neither hire purchase or lottery or chit fund type scheme and the lucky draws are only incentives to members for making monthly advances for the purchase of the refrigerator. It also provides that no claim by any member for cash refund will be entertained. Paragraph 15 of the Scheme provides that if a member wants to take delivery of a refrigerator earlier during the duration of the scheme, he can do so only after he has paid 30 monthly instalments, and after paying the balance instalments in full. It also provides that no claim by any member for cash refund will be entertained. Paragraph 15 of the Scheme provides that if a member wants to take delivery of a refrigerator earlier during the duration of the scheme, he can do so only after he has paid 30 monthly instalments, and after paying the balance instalments in full. The said paragraph further provides that he will be entitled for the lucky draws and if in case the member is declared winner in any draw, then a refund will be given to him by the Company for the amount totalling the balance instalments in full. Such requests for delivery should be made in writing giving one month notice to the Company. In our opinion, the significant part of the Scheme is that the members shall be required to deposit a sum of Rs. 75/- per month till the member is declared a winner in any draw and after all the 59 draws were over, the remaining members who have not been declared winners will get the refrigerator by paying the last instalment. A close scrutiny of the paragraph 4 of the Scheme clearly indicates that the Scheme even if it is treated as a Sale Promotion Scheme does not amount to a contract of sale within the meaning of section 5 of the Sale of Goods Act but is a mere agreement to sell. Section 4 (3) of the Sale of Goods Act reads as follows :- "Where under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract is called a sale, but where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled, the contract is called an agreement to sell." The distinguishing feature between an agreement to sell and a contract of sale is that in a contract of sale the title in goods passes immediately on payment of price but in an agreement to sell the title in goods passes at a future time subject to conditions to be fulfilled thereafter. A perusal of paragraph 4 of Annexure 1 indicates that the title in goods passes on the payment of the last instalment unless any member has been declared winner at any draw. A perusal of paragraph 4 of Annexure 1 indicates that the title in goods passes on the payment of the last instalment unless any member has been declared winner at any draw. If the member is not lucky enough to be a winner in any draw then on payment of the last instalment the title in goods will pass to the members and he will be entitled to a refrigerator only when the last instalment of Rs. 75/- is paid. It is thus clear that the title in goods does not pass to the member immediately but it is deferred to a future time subject to certain conditions to be fulfilled. In our opinion, even if the scheme which has been designated as Sale Promotion Scheme attracts the application of Sale of Goods Act, the transaction evidenced by the scheme would, at best, be an agreement to sell and not a contract of sale. In Sales Tax Officer, Pilibhit v. Budh Prakash Jai Prakash, AIR 1954 SC 459 the Supreme Court observed as follows :- "Under the statute law of India,...... which is based on English law on the subject, a sale of goods and an agreement for the sale of goods are treated as two distinct and separate matters." The distinction between a sale and an agreement to sell has been pointed out in a very clear manner by Benjamin on Sale of Goods, Second Edition. The relevant portion dealing with this aspect of this matter has been dealt with by the learned author in paragraph 25 at page 26 :- "A contract of sale is called an agreement to sell where the transfer of the property in the goods is to take place at a future time or subject to some condition later to be fulfilled. Equivalent expressions are "executory contract of sale" "executory sale"....... "contract to sell". An Agreement to sell is simply a contract, and as such cannot give rise to any rights in the buyer which are based on ownership or possession, but only to claims for breach of contract. Equivalent expressions are "executory contract of sale" "executory sale"....... "contract to sell". An Agreement to sell is simply a contract, and as such cannot give rise to any rights in the buyer which are based on ownership or possession, but only to claims for breach of contract. In the normal case at least, so long as the property in the goods remains in the seller, they are his to deal with as he chooses (except that he may be in breach of his contract with the buyer), they are liable to seizure in distress or execution as his property, and they pass to the trustee in the event of his bankruptcy. 12. It has further been observed by the learned author in paragraph 26 at page 26 :- "Where under a contract of sale the property in the goods is transferred from the seller to the buyer the contract is called a sale and secondly "an agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred." It is, therefore, possible for a sale within the statutory meaning to come about in one of two ways: either by a contract which itself operates to transfer the goods from the ownership of the seller to that of the buyer, the property passing when the contract is made or by a contract which is initially only an agreement to sell, but is later performed or executed by the transfer of the property. In either case it is clear that the sale involves not only a contract, but also a conveyance of the property in the goods, and so it may confer on the buyer the right to bring a claim in fort for wrongful interference with the goods as well as rights in contract." 13. The learned author in paragraph 27 at page 26 of the aforesaid book further observes as follows : "It has been stated above that an agreement to sell is purely a contract, while a sale is both a contract and a conveyance, under which the property in the goods is transferred to the buyer. From this distinction a number of differences follow, at least In principle. From this distinction a number of differences follow, at least In principle. When a party to an agreement to sell makes default, the remedy of the other party is normally an action for damages, but where there is a sale, the seller may sue for the price, and the buyer may assert the remedies of an owner for wrongful interference with the goods not only against the seller, but in appropriate circumstances also against third parties. Again, the risk of loss or damage to the goods, and the corresponding right to profits and increases accruing, is normally in the owner of the goods i. e. the seller under an agreement to sell, and the buyer under a sale." The learned author further observes as follows :- "It should be observed that the questions whether the goods have been delivered and whether the price has been paid are in themselves immaterial to the distinction between a sale and an agreement to sell." 14. The argument of Mr. P. N. Mathur is that under the scheme the title in goods passes when the agreement is entered into. It is another matter that the goods and the price are paid and adjusted at a latter date. We have examined this argument with the attention it deserves. On a close analysis of the Scheme, more specially paragraph 4 of the Scheme, the intention of the parties appears to be that the title in goods passes to the member of the scheme only when the last instalment of Rs. 75/- is paid. The significant words in the Scheme are "the remaining members who have not been declared winners will get the Refrigerator on payment of last instalment of Rs. 75/-" These words indicate that the member is entitled to get a Refrigerator, unless he has been declared a winner earlier, only on payment of last instalment of Rs. 75/-. On the wording of the scheme we are of the view that the title in' goods passes to the member only on payment of last instalment of Rs. 75/-. Since the passing of the title of goods is to take place at a future date subject to certain conditions, the scheme would come within the definition of an agreement to sell and not a contract of sell. 15. The English law on the Sale of Goods is contained in the Sale of Goods Act, 1979. 75/-. Since the passing of the title of goods is to take place at a future date subject to certain conditions, the scheme would come within the definition of an agreement to sell and not a contract of sell. 15. The English law on the Sale of Goods is contained in the Sale of Goods Act, 1979. Section 2 of the Act in so far as it is relevant is as follows :- "2(1) A contract of sale of goods is a contract by which the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price. (2) .......... (3) ........... (4) Where under a contract of sale the property in the goods is transferred from the seller to the buyer the contract is called a sale. (5) Where under a contract of sale the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled the contract is called an agreement to sell. (6) An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred." Chalmers Sale of Goods, Eighteenth Edition, discusses the distinction between sub-sections (4) and (5) of Section 2 of the Act quoted above. At page 86 of the aforesaid book the learned author observes as follows :- "The definition of `sale' has been criticised as failing to distinguish a contract, by which a right in personam is created from a conveyance by which a right in rem is transferred. But the language of English law is inveterate, an agreement to sell being known as an executory contract of sale, while a sale is known as an executed contract of sale. The term "contract of sale" thus includes both actual sales and agreements for sale. It is important to distinguish clearly between the two classes of contract. An agreement to sell, or, as it is often called, an executory contract of sale, is a contract pure and simple, whereas a sale, or, as it is called for distinction, an executed contract of sale, is a contract plus a conveyance. By an agreement to sell a right in personam is created by a sale a right in rem also is transferred. By an agreement to sell a right in personam is created by a sale a right in rem also is transferred. Where goods have been sold (even though not delivered), and the buyer makes default, the seller may sue for the contract price on the count of `goods bargained and sold" but where an agreement to buy is broken, the seller's normal remedy is an action for unliquidated damages. If an agreement to sell be broken by the seller, the buyer has only a personal remedy against the seller. The goods are still the property of the seller, and he can dispose of them as he likes, they may be taken in execution for his debts and if he becomes bankrupt, they pass to his trustee. But if there has been a sale and the seller breaks his engagement to deliver the goods the buyer has not only a personal remedy against the seller, but also remedies in respect the goods themselves, such as the actions for wrongful interference with goods tinder the Tort ..... In many cases, too he can follow the goods into the hands of third parties. Again, if there be an agreement for sale, and the goods are destroyed, the loss as a rule falls on the seller, while if there has been a sale, the loss as a rule falls upon the buyer though the goods have never come into his possession." 16. Under the Sale of Goods Act, 1930 as enforced in this country, section 19 of the Act provides that where there is a contract for the sale of goods 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. 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. 17. The Indian law on the subject is the same as the law in England. In this connection reference may be made to the case of Poppatlal Shah v. State of Madras, AIR 1953 SC 274 , B. K. Mukherjea, J. at page 276 observed as follows :- "The expression "sale of goods" is a composite expression consisting of various ingredients or elements. In this connection reference may be made to the case of Poppatlal Shah v. State of Madras, AIR 1953 SC 274 , B. K. Mukherjea, J. at page 276 observed as follows :- "The expression "sale of goods" is a composite expression consisting of various ingredients or elements. Thus, there are the elements of a bargain or contract of sale, the payment or promise of payment of price, the delivery of goods and the actual passing of title, and each one of them is essential to a transaction of sale though the sale is not completed or concluded unless the purchaser becomes the owner of the property." "The principles enunciated by B. K. Mukherjea, J. In Poppatlal Shah v. State of Madras, AIR 1953 SC 274 (Supra) were again considered by the Supreme Court in Sales Tax Officer v. Budh Prakash Jai Prakash, AIR 1954 SC 459 . Venkatarama Ayyar, J. while discussing the scope of section 4 of the Indian Sale of Goods Act at page 460 observes as follows :- "It will be noticed that though the Section groups bcth sales and agreements to sell under the single generic name of `contract of sale' following in this respect the scheme of the English Sale of Goods Act, 1893, it treats them as separate categories, the vital point of distinction between them being that whereas in a sale there is a transfer of property in the goods from the seller to the buyer, there is none in an agreement to sell." It is to be noted that section 2 of English Sale of Goods Act, 1979 defines a `contract of sale' and an agreement to sell." A comparison of sub-sections (4), (5) and (6) of section 2 of the Act will indicate that the language is similar to the Indian Sale of Goods Act which is to be found in sub- sections (3) and (4) of Section 4 of the said Act. 18. The view taken by Venkatarma , Ayyar, J. has been relied upon by the Supreme Court in New India Sugar Mills Ltd. v. Commr. of Sales Tax. Bihar, AIR 1963 SC 1207 . 18. The view taken by Venkatarma , Ayyar, J. has been relied upon by the Supreme Court in New India Sugar Mills Ltd. v. Commr. of Sales Tax. Bihar, AIR 1963 SC 1207 . At page 1221 of that report, M. Hidayatullah, J. observed as follows: "Venkatarma Ayyar, J. speaking for this, court held that under the statute law of England and also of India there was a well recognised distinction between "sales" and `agreement to sell' though they were grouped under the generic name of `contracts of sale." The distinction, it was pointed-out, lay in the transfer of property which if simultaneous with agreement, made for a sale, but if in the future, operated only for an agreement to sell. In the latter case property could only pass as required by Section 23 of the Sale of Goods Act. Relying on the observations of Benjamin on sale that : "In order to constitute a sale there must be : (1) An agreement to sell by which alone the property does not pass, and (2) an actual sale, by which the property passes, the learned Judge observed that though the definition of a contract of sale included a mere agreement to sell as well as an actual sale, there was distinction between the two which led to different remedies......." 19. If the scheme under challenge is scrutinised in the light of the provisions of the Indian Sale of Goods Act, 1930 and the English Sale of Goods Act, 1979 and the decisions referred to above, it is apparent that the title in goods under the Scheme is to pass to the member of the Scheme only on payment of the last instalment. Once the conclusion is reached that the Scheme in question partakes of the nature of an agreement to sell the question arises as to what is the nature of payment made by the members under the Scheme. Paragraph 5 of the Scheme refers to the payment as `monthly advances' and paragraph 10 of the Scheme refers to payments as "monthly instalments". It is clear from the Scheme that the contract of sale takes place either when a member is a winner in a draw or he has paid all the instalments which make up the price of the Refrigerator, namely, 4500/. It is clear from the Scheme that the contract of sale takes place either when a member is a winner in a draw or he has paid all the instalments which make up the price of the Refrigerator, namely, 4500/. The crucial question is as to whom the money deposited with the promoters of the Scheme belongs till the agreement to sell matures into a sale. The learned counsel for the petitioners contended that the amount paid by the members to the promoters is the price paid in instalments. The argument proceeds that since the payment is in the shape of price in instalments, the money so deposited with the promoters belongs to the promoters and if that is so, the scheme in question will not come within the four corners of `Prize Chit' as defined in Section 2(e) of the Banning Act. 20. It is further contended by the learned counsel for the petitioners that the payment of price and delivery of goods may be postponed as provided by section 5 of the Sale of Goods Act, 1930. In the instant case since, the argument proceeds the price is payable `in instalment' and delivery of goods is to take place after the payment of the last instalment, the money deposited in the shape of instalments is the payment of price in instalments and the delivery of goods is to be made after the payment of the last instalment. In our opinion, this argument is not correct. On a correct interpretation of Section 5 of the Sales of Goods Act and the authorities referred to above, it appears that the payment of price `in instalment' may be agreed to and the delivery of goods may be postponed only when the parties have intended that the title in goods has passed at the time of contract of sale. Section 5 of the Sale of Goods Act contemplates the passing of the title in goods immediately on the contract of sale and in that eventuality the parties may agree that the price may be paid in instalments or delivery of goods may be made at a future date. In order to attract the application of section 5 of the Sale of Goods Act, 1930, it is necessary that the title in goods may pass immediately. In order to attract the application of section 5 of the Sale of Goods Act, 1930, it is necessary that the title in goods may pass immediately. It is, however, permissible that the parties may agree that the parties may be paid `in instalments' and the delivery of goods may be postponed. On a scrutiny of the scheme, we have already held that the agreement is an agreement to sell which provides for passing of the goods only on payment of last instalment. We are of the view that in the instant case, the title in goods does not pass immediately when the contract is entered into. It is postponed to the date on which the last instalment is paid. That being the position, section 5 of the Sale of Goods Act will have no application as in the instant case we are of the view that the title in goods does not pass immediately on the contract of sale. The argument of the learned counsel for the petitioners appears to be incorrect yet on another grounds. 21. Section 2(10) of the Sale of Goods Act defines `price' as `money consideration' for a sale of goods. Section 55 of the said Act provides that where under a contract of sale the property in the goods has passed to buyer and the buyer wrongfully neglects or refuses to pay for the goods according to the terms of the contract the seller may sue him for the price of the goods. It is thus apparent that it is only on the passing of the goods that the seller is entitled to price. In the instant case, under the Scheme the seller is entitled to the price after the payment of last instalment. Till that stage is reached the amount paid by the members to the promoters cannot partake of the nature of price. The money so paid by the members to the promoters of the Scheme may be in the nature of the deposit but the promoters do not acquire title in the money so deposited unless the title in goods has passed from the seller to the buyer. Section 55 of the Sale of Goods Act, 1930 supports this view. The money so paid by the members to the promoters of the Scheme may be in the nature of the deposit but the promoters do not acquire title in the money so deposited unless the title in goods has passed from the seller to the buyer. Section 55 of the Sale of Goods Act, 1930 supports this view. In our opinion, until the last instalment is paid, the money deposited by the members with the promoters is not the money of the promoters but is the money of the members which is in deposit with the promoters. After having reached this conclusion, we proceed to determine how far this scheme comes, within the four corners of the Banning Act. Section 2(e) of the Banning Act defines `Prize Chit' The definition in so far as it is relevant for the. purposes of the case is reproduced below : ``Prize Chit' included any transaction or arrangement. Under which a person collects whether as a promoter ..... or in any other capacity monies in one lump sum or in instalments by way of contributions or subscriptions .... or as membership fees or admission fees. In respect of any .....mutual benefit......or any other scheme or arrangement by whatever name called and utilizes the monies so collected or any part thereof or the income accruing from investment or other use of such monies for all or any of the following purposes, namely, (i) giving or awarding periodically or otherwise to a specified number of subscribers as determined by lot, draw or in any other manner, prises or gifts in cash or in kind, whether or not.the recipient of the prise or gifts is under a liability to make any further payment in respect of such scheme or arrangement. (ii) ............ (f) .............. (Emphasis supplied). According to the above definition the payment of Rs. 75/- per month by the members to the promoters is by way of contribution or subscription in respect of mutual benefit scheme and that money is utilised for giving prizes in cash or kind. (ii) ............ (f) .............. (Emphasis supplied). According to the above definition the payment of Rs. 75/- per month by the members to the promoters is by way of contribution or subscription in respect of mutual benefit scheme and that money is utilised for giving prizes in cash or kind. If the lots are drawn and prizes given out of the money belonging to the members then the case comes directly within the definition of Prize Chits and the Scheme is hit by the Banning Act but if the money deposited by the members with the promoters belongs to the promoters of the Scheme as contended by the learned counsel for the petitioners as representing part of the price then that money if utilised for drawing lots and prizes will not come within the four corners of the Banning Act. Under section 4 (4) of the Sale of Goods Act, an agreement becomes sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred. Price is money consideration for sale of goods. The condition under the scheme is that if the member deposits a sum of Rs. 75/- per month with the promoters and he is not a winner of lot, he will have to deposit the said sum after 59 draws are over and he is not declared a winner and pays the last instalment of Rs. 75/-. Therefore, one of the conditions under the Scheme is that unless all the instalments are paid up or a person is lucky enough to win a prize, the money deposited shall continue to remain the money of the members. This line of reasoning can be tested by putting the question as to when the promoters of the Scheme are entitled to the price. Section 55 of the Sale of Goods Act, 1930 is clear.that the seller is entitled to the price and may sue for it when the title in the goods has passed from the seller to the buyer. Till that stage is reached, in our opinion, the money deposited with the promoters by the members is the money belonging to the members. Since the money deposited under the Scheme belongs to the members and title in that money does not vest in the promoters till the last instalment of Rs. Till that stage is reached, in our opinion, the money deposited with the promoters by the members is the money belonging to the members. Since the money deposited under the Scheme belongs to the members and title in that money does not vest in the promoters till the last instalment of Rs. 75/- is made, any money or part of it utilised by the promoters for drawing lots would be the utilisation of the money of the members. Since the lots are drawn from out of the money belonging to the members, the Scheme would be hit by S. 2(e) of the Banning Act as being a `Prize Chit'. In the instant case, the scheme is a transaction or arrangement within the meaning of S. 2(e) of the Banning Act. The definition of "transaction" and "arrangement" has been discussed by us in detail in Writ Petn. No. 630 of 1982 decided by us on 2041982: (Reported in AIR 1984 All 28 ). It is unnecessary to deal with this aspect any further as we have dealt with this aspect at length in that writ petition. We have also discussed in the aforesaid writ petition the meaning of the word "contribution" or "subscription". Judged in the light of the view that we have taken in the aforesaid writ petition, the payment made by the member to the promoters is in the nature of contribution or subscription. In Writ Petition No. 630 of 1982, we have held on an interpretation of the Scheme under challenge in that petition that the Scheme was not a `Prize Chit' as lots and prizes were drawn not from the money belonging to the members of the Scheme and on that ground we held that the scheme under challenge in Writ Petition No. 630 of 1982 was not a `Prize Chit' within the meaning of section 2(e) of the Banning Act. The position in the instant case is, however, different. On a correct interpretation of the Scheme under challenge in these writ petitions, it appears that it is the money raised by contributions or subscriptions from the members that is untilized for drawing lots and for giving prizes. 22. The learned counsel for the petitioners have not been able to show that the money contributed by the members, in any manner, ceases to be their money and becomes the money of the promoters. 22. The learned counsel for the petitioners have not been able to show that the money contributed by the members, in any manner, ceases to be their money and becomes the money of the promoters. In this view of the matter, the money contributed by the members and deposited with the promoters would be in the nature of a deposit. Lord Machnaghten has observed : "Deposit serves two purposes, if the purchase is carried out it goes against the purchase money but its primary purpose is this : it is a guarantee that the purchaser means business." The above passage occurs at page 24 of Chalmers Sale , of Goods, Eighteenth Edition. 23. The legal position of the promoters qua the money so deposited may be looked at from another point of view. Section 94 of the Indian Trusts Act, 1882 provides that a person having possession of the property who has not the whole beneficial interest therein must hold the property for the benefit of the persons having such interest or the residue thereof. Section 95 of the Act provides that the person holding property in accordance with preceding sections of the Act so far as may be, perform the same duties and is subject, so far as may be, to the same liabilities and disabilities as if he were a trustee of the property for the person for whose benefit he holds it. In the instant case the promoters have possession of the money subscribed or contributed by the members of the Scheme. In that money the promoters have not the "whole beneficial interest in it. The promoters when they take deposit of the money do not have in it "the whole beneficial interest" which is possessed by the members in that money. This is obvious from the fact that the money deposited can be utilised by the promoters as the `price' of the Refrigerator when the last instalment is paid by the member. Till the last instalment is paid, the promoters have no beneficial interest or, at any rate, they do not possess the whole beneficial interest" in the money so deposited. If they do not have "whole beneficial interest" then section 94 of the Indian Trusts Act provides that they must hold the money for the benefit of the persons having such interest. If they do not have "whole beneficial interest" then section 94 of the Indian Trusts Act provides that they must hold the money for the benefit of the persons having such interest. Under section 95 of the Trusts Act, the promoters of the Company are required to perform the same duties and are subject to the same liabilities and disabilities as if they were trustees of the property for the persons for whose benefit they hold it. A combined reading of sections 94 and 95 of the Indian Trusts Act when applied to the instant cases indicates that unless the conditions of the Scheme are fulfilled the promoters of the Company must hold the money so collected from the members as if they were trustees for the benefit of the persons who hold it. If this principle is applied to the facts of the instant case, it is apparent that the money deposited by the members with the promoters of the Scheme by way of contributions or subscriptions is ` the money which the promoters are required to hold in trust for the members till the payment of the last instalment when the agreement to sell matures into a completed sale. If the promoters are trustees of the money so deposited and that money is utilised in drawing lots, it is the money of the members which is being utilized. That being the position the Scheme comes within the definition of the `Prize Chit' as defined in section 2(e) of the Banning Act. 24. During the course of arguments Mr. Brijesh Kumar, Additional Chief Standing Counsel contended that the scheme also comes within the mischief of Money Circulation Scheme as defined in section 2(e) of the Banning Act. We consider it unnecessary to go into this question as we are of the view that the Scheme in question comes within the definition of section 2(e) of the Banning Act as being a `Prize Chit'. 25. For the reasons stated above, we find no merit in these petitions. The petitions are, accordingly, dismissed with costs. The stay order are vacated. BY THE COURT 26. After the judgment in these petitions was pronounced the learned counsel for the petitioners made an oral request that this court may certify that the case involves substantial questions of law and is fit to appeal to Supreme Court. The petitions are, accordingly, dismissed with costs. The stay order are vacated. BY THE COURT 26. After the judgment in these petitions was pronounced the learned counsel for the petitioners made an oral request that this court may certify that the case involves substantial questions of law and is fit to appeal to Supreme Court. In this case we have examined the scheme in question and the validity of the scheme has been challenged by reference to principles well established by the Supreme Court and by Courts in England. The question involved is one of application of principles well established by Courts in India and in England. Since the question is one of application of settled principles, we do not consider it proper to certify that the case is fit for appeal to the Supreme Court. 27. Prayer for granting leave to appeal to Supreme Court is, accordingly refused.