ORDER C.M. Nayar, J.
1. The present suit has been filed for recovery of Rs.3,39,522.39 against the defendants.
2. The plaintiffs have been carrying on business in brass art-wares in shop No.96, Municipal Market, Janpath, New Delhi, under the name and style of plaintiff No.2. Defendants, a partnership firm, are carrying on business as clearing, forwarding and shipping agents. The facts leading to the filing of the suit are enumerated in paragraphs 2,3,4 and 5 of the plaint which may be reproduced as follows:
"2. That the partner of the defendant firm visited the shop of the plaintiff's firm at 96, Municipal Market, Janpath, New Delhi. He agreed to accept the consignment of Brass Art-wares for transportation to Baltimore, U.S.A., for Messrs Amin Merchants at 619, Missisipi Avenue, Silver Springs, MD., U.S.A. The purchasers, Messrs Amin Merchants ordered the goods for sale on the eve of Christmas in 1983. The goods were thus to reach them before Christmas in the said year. The defendant instructed the plaintiff to deliver the consignment to Messrs Jaipur Golden Transport Company at Kamla Market, Ajmeri Gate, Delhi. The plaintiff firm delivered the goods to Messrs Jaipur Golden Transport Company at Kamla Market, Ajmeri Gate, Delhi, according to the instructions of the defendant firm through its partner.
3. That the goods valued at Rs.1,59,751.20p. as per plaintiffs' invoice No.1/786, dated October 6, 1983. The defendants neglected to ship the goods, belonging to the plaintiff to U.S.A., in time before Christmas in the year 1983. The purchasers could not receive goods for sale on the eve of the Christmas in 1983. The plaintiff would have been entitled to earn Drawback, Cash incentives and also licence to import in lieu of her exported goods in case the defendants had shipped the goods to U.S.A. in time.
4. That later the plaintiff on the insistence of the defendants sent a draft No.B/C 442161/448 dated 21.3.1984 for Rs.6,410/- on account of their alleged dock charges etc.
5. That the plaintiff sent a number of letters including their letters dated August 11, 1987, August 31, 1987, September 1, 1987 and September 15, 1987,whereby the Plaintiff requested the defendants again and again to return the goods to the plaintiff. It appears from the notice of the defendants through their Advocate, Shri Z.K. Mehta, dated October 16, 1987 that the defendants refused to return the goods to the plaintiff as they alleged to have disposed of her goods for Rs.15,000/-in August, 1987. The defendants thus mis-appropriated the goods of the plaintiff. These goods valued at Rs.1,59,751.20p. as apparent from the invoice No.1/786, dated October 6, 1983 sent by the plaintiff to the defendants.
3. The plaintiffs served the defendants with the notice dated November 3,1987 requesting them to return the goods to the plaintiffs or pay them Rs.1,59,751.20 as well as interest at the rate of 18 per cent per annum within 15 days from the receipt of the notice. Defendants were duly served but they did not comply with the said notice. The principal amount as well as the interest as claimed by the plaintiffs are reiterated in paragraph 7 of the plaint. The cause of action, it is alleged, arose as the defendants failed to ship the goods in time and later on failed to return the goods belonging to the plaintiffs. Plaintiffs also alleged vide their notice dated October 16, 1987 that defendants have sold the goods illegally.
4. Written statement to the plaint was filed wherein, inter alia, the following preliminary objections were taken:
(a) that the plaintiffs have no cause of action against the defendants and the suit is liable to be dismissed with costs;
(b) the suit is barred by law of limitation and
(c) this Court has no jurisdiction to entertain and try the suit as neither any part of cause of action has arisen nor the defendants carry on business and work for gain within the jurisdiction of this Court. On merits it is contended as follows:
"The defendant states that the true facts are the plaintiff No.2, by its letter dated 7th October, 1983, forwarded to the defendant a set of documents pertaining to 27 cases, allegedly containing Brass Art-wares, and advised the defendant to effect shipment thereof to Baltimore, U.S.A., on the first available vessel. The said set of documents, inter alia, consisted of Invoice No.1/786 dated 6.10.1983 raised by the plaintiff No.2 purportedly on its alleged foreign buyers and a photostat copy of the said buyers' order and the Truck Receipt No. 03-42519 dated 7-10-1983 of the transporters, Messrs. Jaipur Golden Transport Company, New Delhi. The defendant states that in the plaintiff No.2's said invoice No.1/786 dated 6-10-1983, the said consignment of 27 cases was shown to be totally valued at Rs.1,59,751.20, and it was from the said invoice that the defendant learnt, for the first time, that the said consignment was for the said Messrs. Amin Merchants. The defendant further states that it was from the said Truck Receipt No. 03-42519 dated 7.10.1983 that the defendant came to know, also for the first time, that the said consignment of 27 cases had been despatched by the plaintiff No.2 through the said transporters, Messrs, Jaipur Golden Transport Company, New Delhi."
"It is denied that the defendant neglected to ship to the U.S.A. the goods, belonging to the plaintiffs, as alleged, or to the plaintiff No.2, in time before Christmas in the year 1983, as alleged. The defendant states that the said Truck Receipt No. 0342159 dated 7-10-1983 had been sent by the plaintiff No.2 to the defendant to enable the defendant to take delivery of the said consignment of 27 cases, on its arrival at Bombay, from the said transport company. The defendant further states that the said consignment of 27 cases, however, reached Bombay only on the 25th October, 1983. The defendant further states that the defendant did not take delivery of the said consignment as there was, at that time, a strike of the Stevedores in the Bombay Docks since from 20th October, 1983 and, therefore, the goods of the plaintiff No.2 were kept by the said transporters stored in their godown. The defendant further states that the defendant, by their letter dated 28th October, 1983 bearing No.AGC/5610/83, apprised the plaintiff No.2 of the above circumstances and informed the plaintiff No.2. that the defendant would cart the plaintiff No.2's said goods to the docks, for effecting the shipment thereof, as soon as the said strike was over. The defendant by its aforesaid letter further informed the plaintiff No.2 that the said transport company's ware-house charges would be payable by the plaintiff No.2 and the same would, therefore, be included by the defendant in its bill for the shipment. The defendant further states that as soon as the said Stevedores' strike was called off, the defendant had the said goods carted to the docks. However, the plaintiff No.2 instructed the defendant not to ship the same. The defendant by its telegram dated November 10, 1983 informed the plaintiff No.2 that though the defendant had already carted the said goods to the docks, the defendant would stop the shipment to U.S.A. Thereafter, the defendant, as per further instructions of the plaintiff No.2, had the said goods brought "back from the docks into the town" and stored in the defendant's godown "
"The defendant raised on the plaintiff No.2 its bill,being the Bill No.3556 dated 10th January, 1984 for Rs.6,410/- on account of its aforesaid expenses, and sent the same to the plaintiff No.2 along with its said letter dated 11th January, 1984 requesting the plaintiff No.2 to pay the same. The defendant further states that the plaintiff No.2 replied to the defendant by its letter dated 21st March, 1984 inter alia informing the Defendant, for the first time that due to delay in the shipment of the said consignment its said foreign buyer was displeased and that it had negotiated with an agent, who was going to U.S.A. for the export of the said 27 cases of Brass Art-wares and that it would send the Defendant instructions for the said goods soon. The plaintiff No.2 also sent under cover of its said letter dated 21st March, 1984, a Demand Draft for Rs.6,410/- in payment of the Defendant's said bill No.3556 of 10th January, 1984. The defendant acknowledged the receipt of the plaintiff No.2's said letter dated 21st March, 1984 and the said Demand Draft for Rs.6410/- sent therewith, vide its letter dated 23rd March, 1984, whereby the Defendant made it clear to the plaintiff No.2 that it was because of the said dock strike that the shipment of the plaintiff no.2's said 27 cases to Baltimore was delayed and not due to any fault of the defendant "
"The Defendant states and submits that the said consignment of 27 cases had been brought back by the Defendant from the docks in accordance with the Plaintiff No.2's instructions and that the same had been stored by the Defendant in the Defendant's godown on the plaintiff No.2's assurance that the plaintiff No.2 would advise the defendant shortly for effecting the shipment. The defendant further states and submits that when for a long time the defendant did not hear from the plaintiff no.2, the defendant by its letter dated 10th December, 1984 bearing No.AGC/8598/84 placed on record the above facts and informed the plaintiff No.2 that the ware-housing charges, for storing the said consignment of 27 cases in its godown, covered in its said Bill No.3556 dated 10th January, 1984 were up to the 15th January, 1984 and, therefore, a further amount of Rs.3807/- had accrued on account of the said warehousing charges for the period from 16th January, 1984 till 8th December, 1984 and requested the plaintiff No.2 to pay up the same to the Defendant immediately. The defendant by its aforesaid letter notified to the plaintiff no.3 that the said consignment was lying in the defendant's godown at the plaintiff No.2's risk and cost and that the defendant would not be responsible for any damage caused to the packages or inner packing or contents themselves or any loss or deterioration of articles."
5. The plaintiffs failed to pay the warehousing charges for storing the plaintiffs' consignments despite repeated demands and reminders in this behalf. Therefore, in the circumstances the defendants were compelled to dispose of the goods as the consignment had started to rot and split up and the contents thereof had begun to spill over. The defendants were able to dispose of with great difficulty the consignment as scrap and for a price of Rs.15,000/- and after allowing plaintiff No.2 a credit for the amount of Rs.15,000/- there was still due and payable by the plaintiff No.2 to the defendant a sum of Rs.3,697/- on account of defendant's warehousing and other charges etc.
6. Replication was filed wherein the contents of the plaint were reiterated.
On the pleadings of the parties the following issues were framed on September 27, 1991:
1. Whether the plaintiff has no cause of action against the defendants as alleged? OPD
2. Whether the suit is barred by limitation? OPD
3. Whether this Court has no territorial jurisdiction? OPD
4. Whether plaintiff No.1 is the sole proprietor of plaintiff No.2 firm? OPP
5. To what amount,if any, the plaintiffs are entitled towards compensation from the defendants? OPP
6. Relief.
P.W.1 has categorically stated that the office of the defendants firm is at Sant Nagar,Karol Bagh as well as Barakhamba Road, New Delhi. The goods were handed over to the transport company known as M/s Jaipur Golden Transport Company at Kamla Market, Ajmeri Gate as per the instructions of the defendant firm and documents were submitted to the defendants firm. The jurisdiction of this Court, therefore, cannot be held to be barred on the basis of evidence as produced by the plaintiffs. The defendants neither put their case in cross-examination nor led evidence to prove otherwise. In this background the account as given by PW1 is liable to be accepted.
8. In view of the above, it is established that the plaintiffs have cause of action against the defendants and this Court has territorial jurisdiction to decide the issues which have arisen between the parties. The defendants have failed to prove otherwise. Issues 1 and 3 are, accordingly, decided in favour of the plaintiffs and against the defendants.
9. ISSUE NO.2 The plea was raised in the written statement that the suit of the plaintiffs was barred by time. The defendants have led no evidence to prove this issue whereas the plaintiffs have stated in paragraph 8 of the plaint as follows:
"8. That the cause of action arose as the defendants failed to ship the goods in time and later on the failure of the defendants to return the goods belonging to the plaintiff when the defendants informed the plaintiff by their notice dated 16.10.1987 that they have sold the goods illegally. It again arose on service of notice dated November 3, 1987 sent by the plaintiff to the defendants and received by them on November 9, 1987."
10. The suit having been filed on January 29, 1988 is, accordingly, held to be within time in view of the provisions of Article 11 of the Limitation Act, 1963. Issue No.2 is, therefore, decided in favour of the plaintiffs.
11. ISSUE No.4 The plaintiffs have stated in the plaint that plaintiff No.1 has been carrying on business in brass art-wares under the name and style of plaintiff No.2. Plaintiff No.1 is the wife of PW1 Shri Hasin Ahmed who holds power of attorney on her behalf. The power of attorney is filed as Exhibit P.7. The allotment of the shop premises was made in the name of plaintiff No.1. The deed of licence was also executed in her name. The allotment letter is filed in the Court as Ex.P.8 and deed of licence as Ex.P.9. In view of the evidence placed on record, this issue is also decided in favour of the plaintiffs and plaintiff No.1 is held to be the sole proprietor of plaintiff No.2 firm.
12. ISSUE NO.5 The plaintiffs only examined PW1 Shri Hasin Ahmed. In his examination-in-chief this witness has deposed as follows:
" I had to supply 27 cases to M/s Amin Merchants and the partner of defendant had approached me in this regard as he is doing the business of clearing, forwarding and shipping agents. The plaintiff firm delivered the goods to M/s Jaipur Golden Transport Co. at Kamla Market, Ajmeri Gate, according to the instructions of defendant firm through partner of M.Ramzan Karim & Sons. The office of the defendant firm is at Sant Nagar at Karol Bagh, New Delhi. They also have an office at Barakhamba Road, New Delhi. The goods were valued at Rs.15,9751/- and the same was handed over to the transport company and the documents were submitted to the defendant firm. The original invoice was sent along with the documents to the defendant-firm."
Further it is stated as under:
"The business was ruined and I had strained relations with Amin Merchants because of non-supply of goods within time. We had to search the buyers for the goods as Amin Merchant of USA refused to take the goods. The goods remained with the defendant-firm and I had requested them to retain the same till the buyer is available. I sent to the defendant letters dated 11.8.87, 31.8.87, telegram, letter dated 14.9.87 and another telegram which are already exhibited as Ex.P1, Ex.P2, Ex.P3, Ex.P4 and Ex.P5 respectively. The defendant did not reply to any of the above communications. The defendant communicated with plaintiff vide notice dated 16.10.87 which is exhibited as Ex.P6. Till that time I had no knowledge that the goods were sold by the defendant-firm. The cost of the goods was Rs.1,59,751.20 and the defendant sold the goods only for Rs.15,000/-. The defendant-firm communicated by the above said notice. The plaintiff did not receive any notice in this regard that the goods were to be sold in this manner. It is not known when the goods were sold. It is also not known to whom the goods were sold. The manner of sale was also not indicated. The present suit is for the recovery of Rs.3,39,522.39. The details are set out in the plaint. I sent notice to the defendant which is marked as D-10. The suit filed by me is in order."
13. Nothing worthwhile has been elicited from this witness in cross-examination. The defendants did not lead any evidence despite repeated opportunities and Anil Dev Singh, J. vide his order dated January 22, 1997 closed their evidence by recording as follows:
"Mr.Chaturvedi, learned counsel for the defendant states that he has not been able to contact his client. It appears that the defendant is not interested in pursuing the matter. On 4th August, 1992 the evidence of the plaintiffs was closed and the counsel for the defendant stated that he was only to examine the defendant. For the last four years, the defendant has not appeared. In view of these circumstances, the evidence of the defendant is closed."
14. The price of the goods has been established by this witness. It has already been referred to above that the defendants did not lead any evidence despite repeated opportunities. Therefore, the averments of the plaintiffs as made in the plaint were not at any stage controverted. It is well established rule of evidence that a party should put to each of his opponent's witnesses so much of his case as concerns the particular witness. If no such questions are put, the Courts presume that the witness's account has been accepted. This proposition was laid down by the Punjab High Court in the judgment reported as M/s Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd. and another . Paragraph 14 of this judgment reads as under:
"14. The second and the eighth issues may be taken together. The second issue is as to whether the insured goods were looted on 11th of August, 1947, in disturbances preceding the partition of the country as alleged. The eighth issue is as to whether policy No.C-15012 was in force on the date of the loss. Policy No.C-15012 was effective up to 10th of August, 1947, and policy No.C-15025 up to 12th August, 1947. It is argued that the loss took place on 11th of August, 1947, when the goods were said to have been looted.
According to P.W.1 Ram Rakha Mal, P.W. 2 Yodh Raj, P.W.3 Bhim Sain, and P.W.4 Amin Chand, the stock was looted on 8th and 9th of August, 1947. P.Ws.1,2 and 4 were eye-witnesses and saw the goods being looted. P.W.1 stated that the stock of the appellant was in the godown of his brother Jiwan Shah in the latter's factory contiguous to the witness' factory. P.W.2 Yodh Raj stated that the stock of the appellant was kept in Jiwan Shah's place and also in the place of Thakar Das Makhan Lal and was looted on 8th and 9th of August, 1947, and he himself saw the looting.
The looting was also seen personally by P.W.4 Amin Chand. P.W.3 Bhim Sain stated that the goods of the appellant were stocked in the godown of Jiwan Shah and also in the godown of Thakar Das Makhan Lal, that it was widely rumored that the stock of Chuni Lal had been looted, and that previous to the lotting the market rate of sugar was Rs.2/8/- per seer and on the looting the sugar began to be sold at -/3/- or -/4/- per seer. He was not an eyewitness to the looting.
The statements of these four witnesses, who stated that the goods were looted on 8th and 9th of August, 1947, have not been challenged in cross-examination and their credit has not been impeached in any manner. It is a well established rule of evidence that a party should put to each of his opponent's witnesses so much of his case as concerns that particular witness.
If no such questions are put, the Courts presume that the witness' account has been accepted. If it is intended to suggest that a witness was not speaking the truth upon a particular point, his attention must first be directed to the fact by cross-examination so that he may have an opportunity of giving an explanation. In Browne v. Dunn, (1893) 6 R 67(A), Lord Herschell observed:
"I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point to direct his attention to the fact by some questions put in cross-examination showing that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit.
I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with the witnesses."
Similarly the Division Bench of Calcutta High Court in A.E.G.Carapiet Vs. A.Y.Derderian has stated in paragraph 10 as follows:
"10. The law is clear on the subject. Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses. It has been stated on high authority of the House of Lords that this much a counsel is bound to do when cross-examining that he must put to each of his opponent's witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share. If he asks no question with regard to this, then he must be taken to accept the plaintiff's account in its entirety. Such failure leads to miscarriage of justice, first by springing surprise upon the party when he has finished the evidence of his witnesses and when he has no further chance to meet the new case made which was never put and secondly, because such subsequent testimony has no chance of being tested and corroborated."
15. The plaint gives the details of the amount allegedly due from the defendants in paragraph 7 which reads as follows:
"7. That the defendants are liable to pay Rs.1,59,751.20p. on account of the price of the goods plus interest at the rate of 18% per annum amounting to Rs.1,15,020/- plus drawback amounting to Rs.38,994.07p. incentive amounting to Rs.15,975.12p. at the rate of 10%, Rs.9,782/- being 15% profit on licence to import valuing Rs.63,880/- which the plaintiffs would have earned in case the defendants would have despatched the goods within time and would not have misappropriated the goods of the plaintiff.
16. Plaintiffs have, therefore, filed a suit for recovery of Rs.3,39,522.39 on the above basis. The plaintiffs have placed on record the Invoice dated October 6, 1983 which will show that the goods for the amount of Rs.1,59,751.20 were supplied to the defendants for export. This is further reiterated in communication dated August 11, 1987 as addressed to the defendants . This letter reads as under:
"M/s Ramzan Karim & Sons, Bombay Dear Sirs, Sub:27 Cases 1-27 Invoice No.1/786 dated 6.10.1983 After a long time I am writing this letter about my 27 cases which are lying there. So please you think about this matter. So please you send the consignment to New Delhi and all papers. Send us by Allahabad Bank after clearance paper. We will get our consignment but please you charge reasonable because we will share loss equally. Now I am waiting my consignment.
Thank for Invoice No.1/786 dated 6.10.83 Invoice price is 1,59,751.20 I am waiting from your side.
Please arrange to send us consignment by transport service.
Thanks Yours sincerely, sd/-"
17. PW1 has also reiterated in his testimony the price of the goods and the amount claimed in the suit which has been reproduced earlier. This witness has addressed communication dated August 11, 1987 Exhibit P.2 to the effect that the goods may kindly be returned and he is willing to share the loss equally. Exhibit P-3 is Communication dated September 1, 1987 asking the defendants to return the goods. Exhibit P-4 is also a communication to the same effect. Thereafter defendants sent legal notice dated October 16,1987 Exhibit P-6 wherein it has been reiterated that the consignment was lying with the defendants at risk and costs of the plaintiffs since 23rd/24th December, 1983 and as the plaintiffs failed to call back consignment they would not be responsible or liable for any loss or damage that may be suffered by the plaintiffs due to pilferage or deterioration of the goods. In paragraphs 5 and 6 the defendants have referred to the sale of the goods which read as follows:
"5. After failing in all their efforts to invoke any response from you, my clients, in the end, were left with no alternative but to try and dispose of whatever was left of your said consignment; and, it was with great difficulty, that my clients at length, in or about August, 1987 were able to dispose of the contents of the said consignment as `scrap'.
6. The total sale proceeds realised by my clients from the said sale of your said goods, as aforesaid, were Rs.15,000/-. After allowing you credit for the said amount of Rs.15,000/-, there is still due and payable by you to my clients a sum of Rs.3,697/- on account of their warehousing and other charges for the period from 16th January, 1984 upto July, 1987."
18. Plaintiffs sent the legal notice Exhibit D-10 dated November 3, 1987 calling upon the defendants to return the goods or to pay them a sum of Rs.1,59,751.20 with interest at the rate of 18 per cent per annum. There is no response from the defendants and as a consequence the present suit was filed.
19. The matter was argued and it was adjourned from time to time to enable the parties to settle the disputes and agree at a figure to be paid to the plaintiffs. The learned counsel for the plaintiffs, on specific instructions, was willing to accept a sum of Rs.2 lakhs in full and final settlement with costs and interest as it was contended that the defendants wrongfully sold the goods of the plaintiffs without prior notice and without informing the date of the alleged sale whereas the learned counsel for the defendants was willing to pay a sum of Rs.1,50,000/-. The defendants did not lead any evidence but at the same time it was not denied that the plaintiffs had sent the goods for export and the despatch was delayed. The law has already been cited above that where a party has declined to avail himself an opportunity to lead evidence and to put material questions in cross-examination it must follow that the testimony of the other party, such as,that of the plaintiffs in the present case cannot be disputed and has to be believed.
20. The goods were admittedly sold in August, 1987 by the defendants without any prior information to the plaintiffs despite their repeatedly informing the defendants that the goods may be sent to them and they will be willing to share losses equally. Therefore, it is established that the defendants failed to return the goods despite repeated requests made on behalf of the plaintiffs.
21. The question now arises as to what relief the plaintiffs are entitled to in law. Section 160 of the Indian Contract Act, 1872 deals with the return of goods in such a situation and the same reads as follows:
"160. Return of goods bailed, on expiration of time or accomplishment of purpose.- It is the duty of the bailee to return, or deliver according to the bailor's directions, the goods bailed, without demand, as soon as for which they were bailed has expired, or the purpose for which they were bailed has been accomplished."
22. The defendants have sold the goods,therefore, it is not possible to return the same. The plaintiffs have submitted in their communication that they were willing to share the losses equally with the defendants and indeed it can be said that they have also been negligent to some extent in not taking expeditious steps to facilitate the return of the goods. In this background, the liability of the defendants can be determined to the extent of 50 per cent. In the facts and circumstances of the case, as stated above, the plaintiffs shall be entitled to that amount i.e. Rs.1,70,000/- which will account for half amount as claimed in the suit.
23. Accordingly, I pass a decree in the sum of Rs.1,70,000/- with costs and interest at the rate of 12 per cent per annum from the date of institution of suit till realisation.