Case: Central Bank of India Limited Vs. Hari Prasad Jalan &amp; Others

damaged by floods remained with the Bank and were not delivered to the defendants. We have referred in detail to the documents which full establish that the defendants had taken delivery of the goods. In this connection the receipt exh. 4 read with the letter exh. 1-b of September , 29, 1954 constituted unimpeachable evidence of the defendants having taken delivery of the goods in question. It is significant that in the mortgage bond the defendants admitted the amount which was in excess of the value of the pledged commodities. It is common ground and has not been disputed before us that the value of the goods covered by the receipt exh. 4 was not deducted from the amount of Rs. 1, 64.884.14.3 showns to be in excess of the value of the pledged goods on December 29, 1954. If the delivery of the damaged goods had not been taken by the defendants the mortgage bond would have contained a figure after taking into account the value of the aforesaid goods. Moreover the correctness of the stocks hypothecated as per stock report dated December 31, 1954 was also confirmed together with the balance due by means of the letter exh. 5 (c) on January 1, 1955. The plaintiff sent two notices to the defendants to which reply was sent by them. Even in these replies the defendants never took up the position that the Bank was liable to account for the value of the damaged goods since their delivery had not been taken by the defendants. The most striking feature about the whole matter is that at no. stage the defendants either wrote or protested against the non-delivery of the aforesaid goods. There is nothing even in the pleadings in the written statement which have been extensively referred to by us at an earlier stage from which a case could be made out that goods of the value of Rs. 1, 04, 840/- were not delivered to the defendants although they had executed a receipt and admitted that they had been delivered. We are completely at a loss to understand how in these circumstances any oral evidence could be looked at for determining whether the admissions contained in all the aforesaid documents about the delivery of goods to the defendants were wrong. In our judgment in such circumstances oral evidence would be worthless and would be of no. value even if it could be considered in spite of the serious infirmity in the whole case of the defendants on the point there being complete absence of pleadings and issues. Moreover the High Court appears to have proceeded on several assumptions which were not justified. For instance it has been assumed that the letter exh. 1-b was not voluntarily written by the defendants. We have no. been shown any material from which such an inference could be legitimately drawn. The High Court attached importance to the fact that the peon of the Bank who was on duty at the material time was not examined by the Bank to prove that the defendants had taken delivery of the goods. This illustrates the error into which the High Court fell inasmuch as it proceeded to consider the evidence on the footing that it was for the plaintiff to prove the delivery of the goods. In the presence of so much documentary evidence and other facts and circumstances which fully establish the delivery of the goods to the defendants the burden could not have been placed on the plaintiff Bank to prove the same. It was for the defendants to plead and proved that they never got delivery of the disputed goods. This, in our opinion, they entirely failed to do. It cannot be forgotten that admittedly the goods were lying in the godowns which were in the premises of the mills of the defendants. The Bank had only the key or the keys of the godowns. The process of delivering the goods was quite simple as their physical delivery was not necessary. In the above view no. question of the applicability of S. 151 of the Contract Act could arise. Nor was the question of negligence of the plaintiff as a bailee even raised at any time before the suit despite the previous correspondence and the notices sent by the plaintiff. The defendants would, in normal course, have long before the suit informed the plaintiff that on account of its negligence the pledged good had got damaged and therefore, it was liable for all the consequences. Not one word was said about it at all material stages and it was only when the suit was filed that such a plea was put forward.9. Learned counsel for the defendants-respondents has contended that the goods had been completely destroyed by the floods and therefore they could not have been possibly delivered to the defendants. The High Court , however, came to the conclusion that on the evidence on record it could not be held that any portion of the goods mentioned in exhs. 1-b and 4 had been destroyed by the floods. This finding is a complete answer to the contention raised on behalf of the defendants. In spite of our repeated questions counsel for the defendants could furnish no. explanation for the defendants having never demanded the return of the goods which had been damaged during the floods or the adjustment of their value against the dues of the Bank if the case which was sought to be made out before the High Court had any substance.10. In the High Court it was not disputed that the amount of rupees 1, 16, 309.37 due to the Bank had been correctly calculated. The High Court, however, deducted a sum of Rupees 1, 04, 840/- from that amount on the ground that the damaged goods had not been delivered to the defendants. As according to our decision those goods had been delivered to the defendants this amount cannot be deducted from the sum of Rs. 1,16,309.37.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 1

Reasoning from the judgment:
1[ds]This, in our opinion, they entirely failed to do. It cannot be forgotten that admittedly the goods were lying in the godowns which were in the premises of the mills of the defendants. The Bank had only the key or the keys of the godowns. The process of delivering the goods was quite simple as their physical delivery was not necessary. In the above view no. question of the applicability of S. 151 of the Contract Act could arise. Nor was the question of negligence of the plaintiff as a bailee even raised at any time before the suit despite the previous correspondence and the notices sent by the plaintiff. The defendants would, in normal course, have long before the suit informed the plaintiff that on account of its negligence the pledged good had got damaged and therefore, it was liable for all the consequences. Not one word was said about it at all material stages and it was only when the suit was filed that such a plea was put forward.9. Learned counsel for thehas contended that the goods had been completely destroyed by the floods and therefore they could not have been possibly delivered to the defendants. The High Court , however, came to the conclusion that on the evidence on record it could not be held that any portion of the goods mentioned in exhs.and 4 had been destroyed by the floods. This finding is a complete answer to the contention raised on behalf of the defendants. In spite of our repeated questions counsel for the defendants could furnish no. explanation for the defendants having never demanded the return of the goods which had been damaged during the floods or the adjustment of their value against the dues of the Bank if the case which was sought to be made out before the High Court had any substance.10. In the High Court it was not disputed that the amount of rupees 1, 16, 309.37 due to the Bank had been correctly calculated. The High Court, however, deducted a sum of Rupees 1, 04, 840/from that amount on the ground that the damaged goods had not been delivered to the defendants. As according to our decision those goods had been delivered to the defendants this amount cannot be deducted from the sum of Rs. 1,16,309.37.