JUDGMENT <NAME>, J.

1. This is a phenomenal case. Appeal is against a judgment in O.P. (MV) No. 305 of 1986 under Section 110-A of the Motor Vehicles Act, hereinafter referred to as 'the Act'. It is phenomenal, since the victim in the case is the owner of the vehicle itself. Not only this fact makes the case phenomenal but the legal representatives of the deceased got an award of compensation on the basis that the owner of the vehicle, under strange circumstances, met with a motor accident with his own vehicle, which has taken his life. Now, we shall briefly state the facts of the case.

2. Respondent Nos. 1 to 3 in the appeal are the applicants in the application for compensation before <ORG>, Kottayam. The unfortunate event happened on 10.12.1985 at about 11 a.m. Respondent Nos. 1 to 3 herein are the claimants, the widow and minor children of the deceased. 4th respondent is the person who drove the vehicle, which caused the accident. 5th respondent is the insurance company. Appellant herein is a company engaged in the repairing and servicing of motor vehicles. The vehicle in question is a stage carriage KRO 7200. The bus belonged to the deceased. It was taken by him on hire-purchase from <ORG> The vehicle was brought to the garage of the appellant for servicing.

3. The process of servicing was carried on by the workers engaged by the appellant. The husband of the first respondent herein was in the garage. He was talking with some persons. 4th respondent herein was on the driver's seat of KRO 7200. He started the engine and suddenly the bus moved backwards and it hit the compound wall on the western side of the garage. The husband of the first respondent who was leaning to the side of another bus was struck by the left side of the bus KRO 7200 and in fact, he was sandwiched between the bus and the western wall. 4th respondent, <NAME>, escaped running away from the scene.

4. The employees of the garage and others, after pushing back the bus, extricated the injured person (husband of the first respondent) and he was taken to <ORG>, Kottayam. The injury sustained by him was serious. Since it was an internal injury of the lungs, he was subjected to an operation, but, he succumbed to the injury on 11.12.1985. The husband of the first respondent was aged only 38 years. According to respondent Nos. 1 to 3, the deceased was earning about Rs. 10,000/- per month by operating the bus service from Kottayam to Payyappadi. The widow and children claimed a total compensation of Rs. 4,00,000/- under different heads.

5. Several contentions were taken by the appellant including the contention that the <ORG> has no jurisdiction to try the case. The quantum was also disputed. Their liability to pay the amount was also seriously contested. Further, it was contended that in case the appellant is found liable to pay any compensation, the <ORG> should direct the insurance company to pay the amount.

6. The <ORG> very elaborately considered all the points raised before it. It held that the <ORG> has got the jurisdiction to try the case. It found that the appellant is liable to pay the compensation. It fixed the total compensation at Rs. 1,61,760/- with future interest at 12 per cent per annum. It also held that the insurance company is not liable to pay the compensation amount. Naturally, the appellant is aggrieved by the award of the <ORG>. It appeals.

7. Respondent Nos. 1 to 3 have challenged the quantum of compensation and filed a cross-objection.

8. The court is called upon to consider the following points:

(i) Whether on the facts and circumstances disclosed from the evidence, the <ORG> has got jurisdiction to try the case?

(ii) Whether the <ORG> is right in holding that the appellant is liable to pay the compensation?

(iii) Whether the quantum of compensation fixed by the <ORG> is justifiable or adequate?

(iv) Whether the Tribunal erred in declining to direct the insurance company to pay the compensation found to be payable to respondents?

9. Before considering the first question, viz., whether the <ORG> has got jurisdiction on the basis of the power source of the <ORG> under the statute, viz., Section 110 of the Act, we feel that we must be fully informed about the legal status of the appellant in relation to the vehicle of the deceased.

10. Admittedly, the vehicle was in the custody of the appellant and that custody was that of a <ORG>. Section 148 of the Indian Contract Act, defines bailment. Bailment is the delivery of goods by one person to another for some purpose, upon a contract that they shall when the purpose is accomplished be returned or otherwise disposed of according to the directions of the person delivering them. The person delivering the goods is called the bailor. The person to whom they are delivered is called the <ORG>. The obligation and responsibility of a <ORG> are delineated in Section 151 of the Indian Contract Act and it postulates that in all cases of bailment, the <ORG> is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of same bulk, quality and value as the goods bailed. For all intents and purposes as long as the contract of bailment continues, there is nothing wrong in deeming the <ORG> as the owner of the goods bailed. We will consider the effect of a motor accident caused by the employee of the <ORG> in greater detail later, after considering the question whether the legal representatives of the deceased are entitled to maintain an action against the appellant herein for compensation under the Act.

11. It was contended that considering the facts revealed in the case, the <ORG> has no jurisdiction to entertain an application under Section 110-A of the Act. In this context, we have to understand the scope and width of Section 110-A . Section 110-A provides for filing an application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 110 . Section 110-A further denominates the persons who can make the application under Section 110-A Clause (b) of Section 110-A provides "where death has resulted from the accident, by all or any of the legal representatives of the deceased". Of course, Section 110-A also makes provision regarding the form of the application, the contents of the application and the time within which the application has to be filed. The fundamental requirement to attract Section 110-A is that the compensation should be claimed on account of 'an accident' of the nature specified in Sub-section (1) of Section 110 . The <ORG> can entertain an application only if it relates to an accident of the nature specified in Sub-section (1) of Section 110 . So, naturally, we have to consider the nature, scope and content of Sub-section (1) of Section 110 . In fact, the power source of the Claims <ORG> is Section 110 . We shall quote Section 110 (1) in extenso.

110. Claims Tribunals.-(1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereinafter referred to as Claims Tribunals) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both:

Provided that where such claim includes a claim for compensation in respect of damage to property exceeding rupees two thousand, the claimant may, at his option, refer the claim to a civil court for adjudication and where a reference is so made, <ORG> shall have no jurisdiction to entertain any question relating to such claim.

Explanation.-For the removal of doubts, it is hereby declared that the expression 'claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles' includes claims for compensation under Section 92-A

12. As far as the chief question that has to be decided in the case for the purpose of determining whether the application is maintainable before the <ORG> we feel that the key words to be considered in Section 110 (1) of the Act are "claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles" (emphasis added). The <ORG> is given the power to adjudicate claims for compensation arising out of the use of motor vehicles. The legislature, through Section 110 (1) of the Act, has conferred that power on the <ORG>s and the <ORG>s' power is restricted only to claims arising out of the use of motor vehicles. No other restrictions are imposed by the legislature particularly, for the purpose of the case, we may say no restriction as to the class of victims of the accident. "The Claims <ORG> is a <ORG> constituted by <ORG> for expeditious disposal of the motor accident claims. The general law applicable is only common law and the law of Torts. If under the law a person becomes legally liable then the person suffering the injuries is entitled to be compensated and the <ORG> is authorised to determine the amount of compensation which appears to be just.... Section 110 (1) of the Act empowers <ORG> to constitute one or more Motor Accidents Claims <ORG>s for such area as may be specified for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of or bodily injury to persons. The power is optional and <ORG> may not constitute a Claims <ORG> for certain areas." <CITATION> 1977 ACJ 118 (SC).

13. The Act does not create a new right or even a new remedy but has simply changed the forum and the process for adjudicating claims for compensation arising from accidents by the use of motor vehicles. Sections 110-A to 110-F of the Act merely deal with the change of forum and the process by <ORG> substituting the civil court and its process. On a reading of Sections 110 to 110-F of the Act, it is plain and clear that Motor Accidents Claims Tribunals when constituted would substitute the civil courts in the matter of adjudicating the question of compensation arising out of accidents due to use of motor vehicles. As we said earlier, Section 110 (1) of the Act postulates accidents "arising out of the use of motor vehicles". Though the fundamental principle on which the liability is fastened can be traced to the law of Torts, many of the crucial aspects of that liability have been now made statutory by the Act. Even then the principles of law of Torts are relevant in the quantification of damages. We feel the word 'use' in Section 110 (1) of the Act has been used in a wider sense. It covers all engagements of the motor vehicle, including driving, parking, keeping stationary, repairing, leaving unattended on the road or for any other purposes. In the case when a vehicle is being driven and is stopped or parked for being repaired, it cannot be said that the vehicle is not being used. [See General Manager, Karnataka State Road Trans. <CITATION> 1979 ACJ 452 (Karnataka) and <NAME> v. <NAME> 1980 ACJ 248 (MP)].

14. If the vehicle is parked on a dangerous slope and the accident is caused, we feel that Section 110 of the Act would be attracted. When by the opening of the door of a motor vehicle parked on a public road an accident arises, giving rise to a claim for compensation, it could not be said that the accident did not arise out of the use of the motor vehicle concerned. We feel that the words "use of motor vehicles" in Section 110 (1) of the Act are wide enough to comprehend such cases also.

15. Counsel for the appellant submitted that a reading of Section 110-B of the Act would suggest that the <ORG> has no jurisdiction to entertain an application for adjudication of compensation to be paid to the injured or to the legal representatives in a case of death of a person against persons other than the driver, owner or the insurer. It is contended that Section 110-B of the Act makes the jurisdiction of the <ORG> to be confined only against driver, owner or the insurer. A careful reading of Section 110-B of the Act would not permit such an interpretation. Section 110-B only mandates the <ORG> that an apportionment of the liability of the insurer, owner and driver of the vehicle involved in the accident has to be made.

16. In <ORG> v. <NAME> 1988 ACJ 597 (Kerala), a Division Bench of this court had occasion to consider this question relying on the decisions in <CITATION> 1983 ACJ 13 ( <CITATION> 1986 ACJ 334 (Allahabad), [Sic. <CITATION> 1986 ACJ 344 (P&H)] and distinguishing the decisions in <NAME> v. <ORG> 1982 ACJ 374 ( <CITATION> 1986 ACJ 371 (Allahabad). <NAME>, J., has held that the adjudication of all claims for compensation in respect of the accident arising out of the use of motor vehicle is to be done by the <ORG> and that even though under Section 110-B the driver, owner and the insurer are mentioned, it does not curtail the power of the <ORG> to direct payment of compensation to the injured or the legal heirs of the deceased by any person who caused the accident involving the use of the motor vehicle which resulted in death of or injuries to persons claiming compensation.

17. The same view is expressed in <CITATION> 1990 ACJ 1 (Allahabad), wherein the court held that "<ORG> is not confined in its jurisdiction to claims for compensation which are directed only against the driver, owner and insurer of the vehicle. Where the claim is founded on the assertion that the accident was caused by, apart from the use of the motor vehicle, some third party, the <ORG> shall undoubtedly have jurisdiction to entertain the claim even though it is directed against a third party". The crucial aspect to be looked into in deciding the question of jurisdiction, we feel, is that the claim must be in respect of accidents involving the death of or bodily injury to persons caused or contributed by the use of motor vehicle whether wholly or conjointly with some third party. Section 110-B of the Act, we feel, will not militate the view we have expressed above. We may also refer to Section 110-F of the Act, which clearly states that no civil court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by <ORG>.

18. <CITATION> 1986 ACJ 344 (P&H), a Full Bench of <ORG> had occasion to consider the question of the width of the jurisdiction under Section 110 of the Act. The case considered by <ORG> was a claim petition filed for compensation for personal injuries and damages caused to the applicant's car dismissed by the <ORG> on a preliminary objection that it has no jurisdiction to entertain the same. The accident occurred when the claimant was crossing a railway gate. A train struck against the car and it is alleged that the engine was without light. The railway crossing gate was lying open and there was no red light to stop traffic. It was pleaded that the accident occurred due to the negligence and carelessness of the railway authorities including the driver of the train and gateman. The appeal against the dismissal of the application was confirmed by the majority judgment. <NAME>, J., speaking for <ORG>, came to the conclusion that the claim was against the railway authorities alone alleging that the accident took place entirely due to their carelessness and negligence and that of the driver of the train and the gateman. There being no allegation that the motor vehicle in any way contributed to the cause of the accident, it cannot be said that the same had arisen out of the use of the motor vehicle. It is difficult for us to agree with this reasoning. If the motor vehicle was not used or was not driven, there was no possibility of an accident at all. So the accident has arisen out of the use of the motor vehicle.

19. In a case where the accident occurs solely on account of the negligence of a bullock-cart driver or handcart driver, it will be none the less an accident arising out of the use of the motor vehicle. In fact Section 110 of the Act does not refer to the question of whose negligence caused the accident. The emphasis is given only to the use of the motor vehicle for the purpose of attracting the jurisdiction of <ORG>. The minority judgment by <NAME>, J., has considered all the aspects of the matter. The learned Judge observed [quoting from 1983 ACJ 13 (Allahabad) para 12]:

The words 'in respect of accidents... arising out of the use of motor vehicles occurring in Section 110 (1) are words of the widest possible amplitude. We see no reason either on the plain language of Section 110 or in any other allied provisions or the scheme of the Act as manifested by the relevant provisions, which may have inhibited or barred the jurisdiction of <ORG> to entertain an application for compensation in respect of third parties, in the present case, the railway.

20. Really speaking, the jurisdiction for a complete adjudication of all the claims for compensation in respect of accident occasioned on the use of the motor vehicle was called out from the general jurisdiction of the different and varied tortious actions which would enable parties to seek relief for compensation in ordinary courts in regard to accidents arising out of the use of motor vehicles and entrusted under Section 110 of the Act with <ORG>. A complete adjudication of all the claims for compensation in such circumstances is absolutely necessary. Then alone, the statute will be effective and so, unless all the parties involved in the accident are arrayed as opposite parties before the same forum and heard on the question of negligence, the matter cannot be properly and effectively disposed of. Otherwise, even in respect of accidents arising out of the use of motor vehicles, it will be only a truncated jurisdiction before <ORG>. We feel that this cannot be the intention of the legislature. We respectfully disagree with the majority decision in <CITATION> 1986 ACJ 344 (P&H).

21. The discussions we have made above, we feel, would make it clear that the submission made by counsel for appellant that the application is not maintainable is devoid of any merit.

22. Of course, we have to deal with a subsidiary point raised by counsel for the appellant that the jurisdiction of the <ORG> is attracted only if the accident involving the motor vehicle should have happened in a public place. To substantiate this contention, counsel referred us to Section 95 of the Act. We shall examine the sustainability of the submission.

23. We have to bear in mind the intendment of Section 95 when we examine the correctness of the submission made by counsel for the appellant. The intention of the legislature to introduce Section 95 of the Act has to be understood in the light of Section 94 of the Act. Section 94 of the Act was introduced when the legislature felt the necessity for insurance against third party risk. It is to ensure that third parties who suffer due to user of motor vehicles should be able to get damages and recoverability of the damages should not depend upon the financial condition of the driver or owner of the vehicle who caused the accident and so, Section 94 of the Act obliged the owner of a motor vehicle to keep it insured.

24. In dealing with the necessity for insurance against third party risk, of course, the statute provides that no persons shall use except as a passenger or cause or allow any other person to use a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of Chapter VIII of Act 4 of 1939. The statute mandates the necessity for a valid policy in force in regard to the motor vehicle if it is intended or used in a public place. Section 95 of the Act which deals with the requirements of policy and limits of liability also uses the words "arising out of the use of the vehicle in a public place" but it is significant to note that in dealing with the jurisdiction of the <ORG> under Section 110 (1) the statute does not make it a condition that the accident should occur by the use of the motor vehicle in a public place. Section 92-A of the Act is indicative of the fact that liability to pay compensation arising out of the use of a motor vehicle need not be the use of the motor vehicle in a public place.

25. We shall also consider along with the question of the width of term 'public place' the question of insurance company's liability. That has to be answered with reference to Sections 94 and 95 of the Act. As per Section 95 (1) (b) of the Act, insurer is liable to pay compensation to the extent specified in Sub-section (2) of Section 95 of the Act for the death of or bodily injury to any person or damage to any property of a third party if the same is caused by or arises out of the use of the insured vehicle in a public place. Section 2 (24) of the Act defines what is public place. It means a road, street, way or other place, whether a thoroughfare or not to which the public have a right of access and includes any place or stand at which passengers are picked up or set down by a stage carriage. Admittedly, in this case the accident took place not in a road, street or way. If at all, it can be considered as a public place, it can only be a place to which the public have a right of access. In order to attract this part of definition, it must be proved that the public have a right of access to that place. It is not enough that as a matter of fact the public have access. <CITATION> 1970 ACJ 44 (Madras). Even where access to particular road or place is permissive, it cannot be said that public have a right of access to such road or place. Hence such road or place cannot be regarded as public place. <CITATION> 1982 KLT 468. In <NAME> v. <NAME> 1981 ACJ 343 (MP), <ORG> has held that service station premises is not a public place.

26. We do not propose to give in this case a final verdict as to the question whether the premises of the service station is a public place within the meaning of the definition of public place in the Act. The phrase "right of access" mentioned in the definition of public place has to be given a meaningful interpretation, taking into account the purpose of the legislation. The general principle now accepted in regard to question of interpretation is purposive interpretation as against the literal interpretation. In this case, apart from the fact that the insurance company can put forward a defence that the accident took place not in a public place, there can be a valid defence for the insurance company to get itself exonerated from the liability on the ground that the contract of insurance is a contract of indemnity and by the insurance policy, the company has undertaken to indemnify the loss that would have been occasioned to the owner, in case he is compelled to pay damages on account of the accident. Certainly, in this case the owner who is the victim is not compelled to pay compensation to the legal representatives of the victim and so, there is no question of indemnifying the insured and so, the insurance company is not in any way liable to pay compensation that has to be awarded in this case.

27. We have said that the liability to pay compensation is a liability under the general law of <ORG>. We have already determined in paragraph 10 the status of the appellant in this case as that of a bailee. What happened is clear. An employee of the bailee caused the accident by his negligence. Allowing the employees to sit in the driver's seat also is an act of imprudence and negligence on the part of the appellant. If the accident has occurred in the same way as it has occurred in this case and if the victim is not the owner of the vehicle, but a stranger, it will be difficult for the bailee to say that he is not liable for compensation. Perhaps, that stranger victim may have a cause of action against the owner of the vehicle also. If circumstances are brought out to fasten liability on the owner of the vehicle or in case the owner fails to get himself extricated from the liability on the basis of exceptions that can be claimed when the accident has occurred on account of the negligence of the bailee both the owner and the bailee may be liable to pay compensation to the injured or legal representatives of the deceased. Anyhow, in general law it is not difficult to find liability for the negligence of the person who was on the driver's seat. There is no dispute that the person who was on the driver's seat, was solely responsible for the accident and that he was the employee of the appellant. We have no hesitation to hold that the person who actually caused the accident by his negligence has no defence to escape liability to pay compensation. He is bound to account for his negligence. If the person who is primarily bound to account for the negligence is the employee of the appellant, the appellant is also vicariously liable to account for the negligence of his employee.

28. There are decisions to the effect which would show that the bailee's sole interest is essentially possessory and it is demonstrated by his ability to recover for injury to the goods without proof of personal loss against a stranger and is consistent with the principles of bailment generally. A right to immediate possession is better characterised as generating a constructive rather than an actual possession.

29. In <NAME> v. <NAME> (1877) 3 NZ Jur (NS) CA 10 at 16 per <NAME>, <NAME> said:

Until I heard Mr. <NAME>'s able and ingenious argument, it never occurred to me to doubt that the law is that either <NAME> or bailor may sue a wrongdoer for the entire damage done to the chattel bailed. And after careful consideration of the argument and examination of the authorities, I adhere to my previous opinion.

There is no dispute that a bailee's possession is a prerequisite or to which it is one of several grounds of potential qualification. His lack of full ownership does not preclude him from recovering the full value of the chattel or the full cost of its impairment; the rule in such circumstances is that "as against a wrongdoer, possession is title", Vide The Winkfield, (1902) p. 42 at 60 and Bailment by Palmer, 1979 <ORG>., p. 177.

30. <NAME> in his book Bailment says:

It was only in the present century that the bailee's rights of action against a wrongdoer were finally established, although decisions granting him an action in trover for full value of the goods can be traced from the beginning of the 19th century. It was at first unclear whether his use of this or any remedy was conditional upon his liability to the bailor; if it were not, he would stand to recover more than he had lost, while the wrongdoer would be forfeiting more than the extent of his immediate damage.

31. We have considered now only the <ORG>'s right to recover damages from a wrongdoer in regard to the goods bailed. But the question that has to be focussed is the liability of <ORG> to third parties. Again we rely on Bailment by Palmer at p. 966. Referring to decided cases, the learned author has epitomized the rule thus:

The bailee's responsibility for injury or loss inflicted upon a stranger to the bailment by the chattel is a simple facet of the ordinary law of negligence or trespass and does not necessitate exhaustive discussion. He will be liable if, through the negligent misuse of the chattel by himself or his servants acting in the course of their employment, a third party is foresee-ably injured or property is foreseeably damaged.

We feel that the appellant whose status is that of a <ORG>, in the circumstances, is accountable for the negligence of his employee. So, necessarily, we have to hold that the appellant is liable to pay compensation to the claimants.

32. Now, we have answered the points regarding jurisdiction and other question of law against the appellant and the question of the liability to pay compensation by the insurer in favour of the insurance company. So we have to dismiss the appeal, M.F.A. No. 175 of 1990. The appellant has challenged the quantum of compensation allowed by the <ORG>. The question of quantum of compensation we will be dealing when we deal with the cross-objection.

33. Now we have to consider the cross-objection filed by the claimants, we have upheld the finding that the first and second respondents are liable to pay compensation to the claimants, the petitioners in the cross-objection. The claimants have claimed a total amount of Rs. 4,00,000/- as compensation. By the award, the <ORG> determined a total compensation of Rs. 1,61,760/- with interest at 12 per cent per annum from 2.5.1986 till date of realisation and proportionate costs from respondent Nos. 1 and 2 in O.P. (MV) No. 305 of 1986. The claimants submit that the compensation awarded is inadequate, insufficient and not fair. Of course, in the matter of determining compensation, the court should approach the question on the basis that it must be fair and reasonable. The court is not expected to approach the problem as if the respondents are wrongdoers in the sense that they have to be penalised.

34. The petitioners in cross-objection claimed a total compensation of Rs. 4,00,000/-under different heads. In part I claimants wanted the compensation under three heads:

(i) Transport to and from hospital Rs. 250/- (ii) Damage to clothing and articles Rs. 250/- (iii) Funeral expenses Rs. 7,500/-

On the above three heads, the <ORG> allowed the first two claims in toto and for the third claim, viz., funeral expenses, the <ORG> allowed an amount of Rs. 1,500/-. Strictly speaking funeral expenses is not an item which can be claimed. This is on account of the fact that death is a certain event, though we cannot predicate when exactly it will happen and when it happens it is the duty of the living to bury the dead. But, in the case of death due to an accident as against the natural death, unforeseen expenses have to be incurred and there is nothing wrong in allowing a small amount under this head and that is what has been done in this case. The <ORG> has awarded only Rs. 1,500/-.

35. In part II, the claimants have claimed an amount of Rs. 25,000/- as compensation for pain and suffering, Rs. 25,000/- as compensation for loss of consortium to the 1st petitioner and Rs. 3,40,000/- as compensation for loss of income on account of death. The <ORG> awarded Rs. 5,000/- as compensation for pain and suffering of the deceased. The accident had occurred at about 2 p.m. At the time, when the victim was taken to the hospital, he was conscious. That is clear from the evidence of PW 1. The end came on 11.12.1985, at about 11 a.m. and considering the serious injury suffered by the victim which resulted in his death, the amount of Rs. 5,000/- as compensation for the pain and suffering of the deceased allowed by the <ORG> is only fair and reasonable and we confirm <ORG>'s determination of compensation on this count.

36. Though in the petition Rs. 25,000/- is claimed for loss of consortium to the 1st claimant, there is no specific claim for the loss of filial affection and care for the two minor children. The deceased was aged only 38 years. He seems to be a successful businessman, who was conducting a bus service. The <ORG> has awarded only Rs. 5,000/- as compensation for loss of consortium to the 1st claimant. We feel that the amount awarded is inadequate. We are of opinion that in the circumstances of the case, the 1st claimant is entitled to an amount of Rs. 7,500/- for the loss of consortium and the children together are definitely entitled to an amount of Rs. 5,000/- for the loss of love and affection of their father.

37. There is no separate claim for loss of expectation of life, which is an allowable claim in determining compensation payable in the case of death on account of motor vehicle accident. Though there was no specific claim on this count, <ORG> has held that in the total claim made by the claimants if a legitimate count has not been specifically mentioned, the court is not precluded from allowing a reasonable amount under a legitimate count if by allowing, the total amount will not exceed the claim. We feel, in the circumstances, considering the age of the victim, the claimants are entitled to an amount of Rs. 5,000/- on account of the loss of expectation of the life of the deceased. Of course, the amount goes to the estate of the deceased and the estate naturally devolves on the legal representatives, who are the claimants before us.

38. Now we have to decide the question of loss of contribution to the claimants from the earnings that could have been made had the victim survived. This is the main claim. The claimants wanted under this count an amount of Rs. 3,40,000/-. The <ORG> found that the contribution that could have been given for the maintenance of the family by the deceased, if he had survived, is Rs. 960/-per month. The <ORG> has taken 960 as the multiplicand and applied 14 as the muliplier and calculated the amount at Rs. 1,61,280/-. From the said amount for the vicissitudes of life and for lump sum payment a deduction of 1/14th of the total amount has been effected by the <ORG> and found Rs. 1,49,760/- as the net amount. Though PW 1 has given evidence that her husband was earning Rs. 10,000/- per month for six months immediately prior to the accident, by conducting the bus service, the <ORG> did not accept this evidence and determined comparatively a low figure of Rs. 1,200/- stating that it would be a reasonable amount to be fixed as his monthly income. From the amount of Rs. 1,200/- the <ORG> deducted 1/5th for the personal expenses of the deceased and came to the conclusion that the contribution the deceased would have given for maintenance of his family as Rs. 960/- per month. In fixing the multiplier the <ORG> only said the deceased is aged 38. No other basis is given for determining the multiplier as 14. Considering the age of the deceased and the nature of the business the deceased was carrying on and the fact that the widow is aged only 38 at the time of filing the application and other two claimants who are minors aged 13 and 8, we feel that the multiplier adopted by the <ORG> is not justifiable. Further, it has to be remembered that <ORG> has said that the normal expectancy of the life of an Indian is 70. In view of all these facts, we feel that the multiplier, if it should be fair and reasonable, must be 20. Calculating on that basis, the total amount payable under this count will come to Rs. 2,30,400/-. Further taking into account that we have adopted the monthly contribution for the purpose of determining the compensation under this head as Rs. 960/- while the claim of the claimants is Rs. 10,000/- per month, which was attempted to be proved by producing Exh. A-9 we feel that for payment of the amount as a lump sum and the vicissitudes of life 1/6th of the total amount should be deducted. Deducting 1/6th of the total amount the net amount will come to Rs. 1,92,000/-.

39. In the result, the total amount of compensation payable is Rs. 1,92,000/- + Rs. 24,500/- (on other miscellaneous counts) i.e., Rs. 2,16,500/-. We allow the cross-objection and modify the award, directing respondent Nos. 1 and 2 in the application to be jointly and severally liable to pay an amount of Rs. 2,16,500/- with 12 per cent interest from the date of the filing of application till payment to the claimants. We apportion thus:

Rs. 75,000/- with interest at the rate of 12 per cent from the date of application till payment to the widow, the first claimant and Rs. 70,750/- with interest at the rate of 12 per cent to each of the minor children. If any amount has already been paid in this case, it has to be adjusted. The minor's share should be deposited in a nationalised bank for such period till the minors attain majority.


JUDGMENT <NAME>, C.J.

1. This Appeal against the Judgment of <NAME>, J., in C.M.S.A. No. 130 of 1954 arises in the following circumstances. One <NAME> filed O.S. No. 675 of 1952 in <ORG>, Tiruchirapalli, against <NAME>, the respondent herein, for recovery of possession of the property in dispute and for past and future rents. In that suit the parties entered into a compromise and based on that compromise the Court passed a decree directing the respondent herein to deliver possession of the property by 15th March, 1954 and also to pay past and future rents. As the respondent failed to deliver possession by the prescribed date, the plaintiff-decree-holder filed E.P. No. 240 of 1954 on 18th March, 1954, for delivery of possession. An order for delivery was passed on 12th April, 1954, directing delivery by 10th Jnne, 1954. On 15th April, 1954, the respondent filed an appeal to <ORG>, Tiruchirapalli, against the order for delivery (A.S. No. 177 of 1954). In that appeal he obtained on ex parte order of stay on 15th April, 1954, itself. On 27th May, 1954, the original decree-holder <NAME> died. On 8th July, 1954, <ORG> dismissed A.S. No. 177 of 1954 on the ground that the order of delivery was right. The learned Judge inter alia observed as follows:

The right given to a tenant by Section 7 of the Act is a substantive right and there is nothing in the Act to indicate that it is retrospective in the application. Therefore, there can be no question of applying the provisions of the Act, so as to hold that the order of delivery passed against the appellant is wrong. It is urged that Section 7 not merely vests a right in the appellant but prohibits the <ORG> from evicting him. If that is so, it is for the appellant to ask the <ORG> which is threatening to evict him to stay his hands (whether it is bound to do so or not is not a matter on which I am expressing any opinion); not to come in appeal against an order which is perfectly proper and legal.

2. Apparently the view taken by the learned District Judge was that Section 7 of the Madras Buildings (Lease and Rent Control) Act would not make the original order for possession ipso facto invalid, but it might be that the judgment-debtor could object to actual eviction in pursuance of the order. After the dismissal of his appeal the respondent filed an application, E.A. No. 845 of 1954 on 12th July, 1954, for Stay of execution. Meanwhile the son of <NAME>, the present appellant before us, filed an application on the same day that he may be added as legal representative of the decree-holder praying for a decree directing delivery of possession of the suit property to him. The ground taken by the respondent was that the Rent Control Act had been extended to the village in which the property was situated on and from 16th June, 1954 and therefore the decree-holder's legal representative could not evict him. The learned District Munsif of Tiruchirapalli overruled the respondent's objection and brought the appellant before us as the legal representative of the deceased decree-holder and passed again another order for delivery of possession to the legal representative. Against this order of the District Munsif the respondent filed an appeal, A.S. No. 261 of 1954 which was heard and disposed of by the learned Subordinate Judge of Tiruchirapalli. He dismissed the appeal on the ground that Section 7 of the Act would not apply to pending execution proceedings, that is to say, to the prior execution petition wherein an order for eviction had already been passed. From this order the respondent preferred an appeal to this Court, C.M.S.A. No. 130 of 1954 which came up for decision before <NAME>, J. The only question argued before him was whether the Rent Control Act whose application had been extended to the village in which the property was situated only on 16th June, 1954, would prevent the eviction of <NAME> except in accordance with Section 7 of that Act. The learned Judge after an elaborate discussion of the several decisions cited before him held that Section 7 of the Act does apply and is a complete answer to the claim of the decree-holder's legal representative to evict the respondent. The learned Judge therefore allowed the appeal and dismissed the execution petition filed by the decree-holder's legal representative but granted leave to file a Letters Patent Appeal.

3. Mr. <NAME>, learned Counsel for the appellant, contended, relying upon the well-known rule against implying retrospective operation of statutes, that Section 7 of the Act would only apply to decree passed in suits filed after the passing of the Act. In this case admittedly the decree was passed long before the Act, and even an execution petition had been filed before the Act came into force. We cannot agree with this contention of learned Counsel for the appellant. Na authority has been cited to us for this extreme position that Section 7 would not apply except to decrees passed in suits filed after the passing of the Act. On the other hand <ORG> of this Court held in <CITATION> (1949) 1 M.L.J. 376 : A.I.R. 1949 Mad. 809, that a provision similar to Section 7 of the Act of 1949 might bar the eviction of a tenant in execution of a decree passed in a suit filed before the concerned statute. In that case the suit was filed in 1943 for eviction of the tenant. On 11th July, 1944, Clause 8 of the Madras Non-Residential Buildings Rent Control Order, 1942, was amended and when so amended the clause ran as follows:

A tenant in possession of a non-residential building shall not be evicted therefrom, whether in execution of a decree or otherwise...except in accordance with the provisions of this clause.

4. It was contended before <ORG> that the moment a person files a suit he obtains thereby a vested right to have applied not only to the suit, but to all execution proceedings also, the law relating to execution as it existed at the time of filing the suit. The learned Judges had no difficulty in rejecting this contention as they were not aware of any such principle. They found no reason to think that if a new law is introduced restricting the right to execute, execution proceedings can nevertheless be instituted if such a right existed on the date of the filing of the suit. The observations of <NAME>, J., in The United Provinces w. Mt. Atica Begaun (1941) 1 M.L.J. Sup. F.C. 65, were relied on behafore <ORG> but the learned Judges did not agree that the observations in any way affected their decision. Actually in that case the decree was passed after Clause 8 of the Non-Residential Buildings Rent Control Order had been amended in the manner aforesaid. The execution petition was filed subsequently. The decision of the learned Judge was that Clause 8 prohibited the decree-holder from filing an execution petition, his only way of evicting the tenant being to file an application before the Rent Controller. No doubt there is a reference to pending proceedings in one part of the judgment but it was not necessary to deal with the point because they held that during the interval between the passing of the decree and the filing of the execution petition there was no pending proceeding. The basis of the decision is certainly against the view that Clause 8 would not affect pending proceedings. Mr. <NAME> relied upon the decision of <ORG>, in <NAME> v. <NAME> (1945) 1 M.L.J. 441. In that case the Chief Judge of <ORG> dismissed an application for ejectment. That application was filed on 18th March, 1944. There was a sub-letting of a portion in June, 1943. Possession was to be given on 14th April. On 14th April the plaintiff when he sought to obtain possession was obstructed by the respondent. Thereupon an application was made to <ORG> and that Court dismissed the application. The learned Judge adverted to the difference in the language between the old Section 7-A, Madras House Rent Control Order and the new Section 7-A. The learned Judge took the view that <ORG> had no jurisdiction to invoke the new provision and construe it to operate retrospectively. He allowed therefore the revision petition before him and set aside the order of <ORG>. In the concluding portion of his judgment there are certain observations which really are pertinent for the disposal of this case, namely:

If and when an application for possession comes before the Controller, the Controller should apply his mind to the circumstances actually and presently before him to enable him to make or refuse an order, and it would be for one side or the other to point out that the application for ejectment had lost its force owing to the fact that since the application has been made, difficulties which were then not in existence had arisen or difficulties that were in existence had disappeared.

5. We must confess we are not able to fully appreciate the scope of these observations. The Division Bench in <CITATION> (1949) 1 M.L.J. 376 : A.I.R. 1949 Mad. 809, understood this passage thus:

It is seen from this passage that the learned Judge, far from thinking that the landlord had, by the institution of his application for possession in the Sub-Court, acquired an absolute right to physical possession, contemplated proceedings before the rent controller in which it would be contended by the tenant that in view of the new legislation, actual possession could not be given.

<CITATION> (1949) 1 M.L.J. 452, it was pointed out by a Division Bench to which one of us was party that the jurisdiction of a Civil Court to entertain and pass a decree in a suit for eviction by a landlord against his tenant is not expressly or impliedly taken away and that Clause 8 of the Madras Non-residential Buildings Rent Control Order, which corresponds to Section 7 of the Madras Buildings (Lease and Rent Control) Act, 1949, prevents the tenant from being thrown out. One of the methods of eviction is by the process of execution of a decree for possession and it was held that this method was prohibited and eviction could only be in accordance with the provisions of the Rent Control Order.

6. In our opinion this appeal can be disposed of on a very short point. This appeal arises out of an execution petition filed on 12th July, 1954, (E.P. 240 of 1954) by the legal representative of <NAME>. There was no doubt a prior execution petition filed by <NAME> himself and an order for eviction but admittedly the respondent had not been evicted in pursuance of that order. That is why after the death of <NAME> his legal representative, the appellant before us, was compelled to file another execution petition praying for delivery of possession. That admittedly was filed after the Rent Control Act had come into operation in the village in which the property was situated. We fail to see how the principle against retrospective operation is offended in this case. It is not as if during the pendency of E.P. No. 240 of 1954, out of which this appeal arises, that the Rent Control Act came to be extended to the suit village. By the date of the filing of the present execution petition the Act had come into force. The executing Court which was bound to apply the provisions in the statute had come into force even before the date of the execution petition which it was called upon to dispose of. In our opinion there is no substance in the contention of learned Counsel for the appellant.

7. It was argued but without the support of any authority that Section 7 would not apply to compromise decrees. Once a decree is passed, we can see no difference on principle between a decree passed on a compromise and a decree passed after contest.

8. Mr. <NAME> sought to raise a new point which was not raised by him in the Courts below and not even in the memorandum of appeal, namely, that as the respondent had obtained a stay of the order for delivery passed by the learned District Munsif of Tiruchirapalli on 15th April, 1954, on the misrepresentation that the Rent Control Act had been extended to the suit village, he was disentitled to any relief based on the provisions of the Act. We do not have the order of stay passed by the learned District Judge nor a copy of the affidavit filed by the respondent in support of his application. We do not know what prompted the learned District Judge to pass the ex parte order. In the absence of even a specific ground in the Letters-Patent Appeal, we do not think the appellant should be allowed to raise a new point at this late stage. The appeal fails and is dismissed with costs.


<NAME>, J.

1. This is a suit to recover Rs, 3,00,000 pursuant to an agreement in writing dated March 7, 1944, or alternatively as money paid for a consideration which has wholly failed. The defendant admits the making of the agreement and payment to him by the plaintiff of the sum sought to be recovered. He contends (inter alia) that the consideration has not failed wholly, that on the true construction of the agreement the money is not repayable, and that the agreement has been terminated by frustration.

2. The contract out of which the suit arises is admittedly contained in two letters exchanged in Bombay on March 7, 1944. That addressed by the defendant to the plaintiff reads as follows:

I agree to purchase for you and on your behalf 300 bales Grey cotton yarn merchantable quality each bale weighing 400 lbs. of which 100 bales shall be of 20 x 2S and 200 bales of 42 x 2S counts and to ship the same from Jattarabad to Khoramshare.

You will provide to me the cost of purchase and all other expenses incidental to conveying the goods from Bombay to Jaffarabad such as carting, railway freight, storage and other charges, which shall be paid to me on presentation of the invoice.

On my loading the goods on a country craft and handing over to you the shipping documents, I will be entitled to receive from you Rs. 25 per bale and 5% commission on the total cost involved.

In case I am unable to effect shipment of the goods or if the country craft, for any reason, fails to cross the territorial waters of Jaffarabad, I will repay to you the cost paid as per my invoice and all other expenses incurred in taking the goods to Jaffarabad and I will lose my right to claim from you as remuneration Rs. 25 per bale and 5% commission and will refund to you the same if paid.

Apart, of course, from transposition of the parties, that addressed by the plaintiff to the defendant differs materially from its twin brother only in that it contains the words "from Jaffarabad" after the words "shipment of the goods", thereby making abundantly clear that which is common ground, namely, that the shipment contemplated was shipment from Jaffarabad and nowhere else, in the last paragraph. Jaffarabad is in Janjira State, Kathiawar, and Khoramshare is a Persian Gulf port.

3. The surrounding circumstances which must have been present to the minds of the parties and which I am entitled and bound to take into consideration in construing this contract are matters of common knowledge. A world war was in progress, with far-reaching effects on commercial and other life even, in Western India. Among its minor horrors in that and other areas was an abundance of that which is popularly called "red tape", although in fact bureaucrats ordinarily use white tape, presumably to disarm criticism. Almost every activity of the citizen was subject to a greater or less degree of interference, direct or indirect, by officials, including a control of prices. While, therefore, the war had produced in India a serious shortage of yarns and textiles, great profits were to be made by exporting these and other articles to the Persian Gulf. This traffic the Governments of British India and/or Bombay were desirous of stopping, and to have exported such goods from a British Indian port would have been difficult, if not impossible. It was unquestionably the object of the parties to evade the ban on export of the goods in question, and while they no doubt hoped and expected that their venture would be less likely to be interfered with in an Indian State) than in British India, Mr. <NAME>, for the defendant, with his wonted frankness, admits that they did not imagine that the rule of "red tape" ceased absolutely at the frontiers of the latter, nor conceivably could they have done so.

4. The multitudinous regulations which have to be promulgated to ensure the efficient prosecution of a modern war are, undoubtedly, a great nuisance. No one could possibly carry them all in his head and the most law-abiding and patriotic citizen may constantly break them by inadvertence. Often they bear the marks of incompetent draftsmanship and one wonders in some particular cases whether they are really conducive to their very desirable end. None the less, their deliberate evasion stands on a very different footing from the perfectly legitimate pastime of finding and exploiting loopholes in normal, peacetime, legislation. To indulge in that practice is the perfect right of a free citizen, and, even if it served no other useful purpose, provides interesting and lucrative work for the legal profession.

5. The evasion of regulations made in the time of war with a view to the ultimate deliverance of one's country from that curse, and that for the sake of a commercial profit made while one's fellow citizens are fighting and dying on the field of battle, seems to me, to say the least of it, less commendable. Their. common object having been what it was, I have not, myself, the slightest sympathy, in the events which have happened, for either of the parties.

6. Another circumstance which must have been present to their minds had nothing to do with the war, though it was equally notorious. The monsoon might be expected to break in Bombay about the third week of June and in Kathiawar very little later. "Country craft" in which it was proposed to effect shipment, are somewhat primitive lateen-rigged sailing vessels, capable of long and surprisingly fast passages in fair weather, but very illfound for surviving a monsoon gale, a fact patently obvious to anyone with any knowledge of seamanship who has ever inspected one of these ships. No master of a country craft in his senses would set out on a voyage to the; Persian Gulf at a time when he could not be reasonably certain of getting well clear of the monsoon area before the monsoon broke: he would take his departure (if he was going to do so at all) by about May 31 at the latest. Both parties are, I gather, experienced Bombay business men, and this fact must have been as perfectly well known to them both as to anyone else of any intelligence in this port.

7. Mr. <NAME> for the defendant wished to adduce oral evidence under the guise of "surrounding circumstances" to show that what the parties really meant by the expression "in case I am unable to effect shipment of the goods" was "in case my licence or licences to export the goods should prove ineffectual". But I felt bound to exclude any such evidence: to have allowed it in a suit, other than a suit for rectification, would, I think, involve a plain violation of Section 92 of the Indian Evidence Act. The rule as to "surrounding circumstances" cannot be extended to enable a party to prove that when he wrote one thing he meant, and was understood to mean, something totally different.

8. Between March 7 and 28 the plaintiff paid defendant three sums on account of one lakh each, and on or about the 28th the defendant presented, an invoice antedated to the 8th for 303 bales of yarn of counts not identical to those specified in the written contract, the total price being Rs. 3,37,768-12-0. The parties had admittedly agreed to vary the original contract as to counts, and it is unnecessary to go into this in detail or to discuss the matter of the odd three bales.

9. The plaintiff never paid the balance of Rs. 37,768-12-0 or any part thereof. He is not, therefore, asking for it back; nor is the defendant counter claiming for it. Whether the defendant even asked for it is in dispute, but the question appears to me quite academic in the events which have happened.

10. During and, I think, after March the defendant, who had entered into contracts similar to that in suit with numerous merchants other than the plaintiff, bought from time to time at Bombay in his own name very large quantities of yarn of which the 303 bales invoiced to the plaintiff formed a part. The bales which the defendant is pleased to call "the plaintiff's bales" have never been placed separately from the resit, or marked with the plaintiff's name, or in any other way physically appropriated to the plaintiff. The making out of the invoice already referred to did not serve that purpose, because in every case in which he charged for various numbers of bales of a given description, the defendant had in fact on hand more than that number of bales of that description: so that from first to last there never was a moment when anyone other than the defendant could have gone to the bales and picked out any specific 303 bales as the property of the plaintiff. It is true that the defendant might have done so, but there would be nothing to prevent his picking out a different 303 bales, corresponding to the bales in the invoice, five minutes later. The defendant has contended, as long as he could, that there was an appropriation to the plaintiff, but a timely summons for particulars eventually pinned him down to what was really an admission that this was not so at all. He also says that the plaintiff was aware of and consented to the course of dealing I have briefly described, but the same affidavit of particulars now discloses that what he really relies on is the con-sent and knowledge of one <NAME>. Whether the latter had any authority from the plaintiff to give his consent is in dispute. The defendant, through his counsel, expressed his willingness to discharge the onus of proving that he had. It appeared to me, however, and still does, that this question, also, is now academic. I propose to discuss the legal effect of the foregoing after stating the remaining facts,

11. At some time-I am not sure when, nor does it matter-the defendant got hold of three licences signed by the <ORG> of Janjira State in favour, respectively, of two individuals other than himself and of a Bombay firm, one of which permitted the export from Janjira to Khoramshare of 1,000 bales of cotton yarn. This was, however, valid only up to May 9.

12. In order to ship the goods at Janjira the goods had to be got to Janjira, and the defendant in fact set about doing this. The route he chose was by rail into the State of Cambay and thence by ship to Janjira. The plaintiff took no steps to obtain any necessary licence for the purpose of getting the goods to Janjira, holding, as he still maintains, that it was for the defendant to do so.

13. Apparently, all the goods in question were still in Cambay on June 14, 1944, on which date the <ORG> export licence relied on by the defendant had long expired. Apart from that, it was then probably too late, in view of the approaching monsoon, to consign the goods by country craft even to Jaffarabad, and certainly too late to expect such a vessel to set out for <ORG> I assume, as the contrary is not alleged, that the delay so far was due to no default or neglect by the defendant.

14. According to the defendant (and I assume the correctness of this for the purpose of deciding the legal aspects of issue No. 5), on June 14 the goods in question were (to use a metaphor which is not altogether happy in this climate) "frozen" by a notification by the <NAME> of Cambay. Whether that official was inspired or pressed into issuing this notification by any power other than his own Prince I do not know, nor does it matter. The fact is that the further movement of the goods was prohibited and there at Cambay they have remained ever since.

15. While in a godown at Cambay they seem, of course, to have been, and to be, completely useless either for the efficient prosecution of the war or for any other purpose. There may be some reason, beyond my ken, by force of which cotton yarn locked up in a shed in Cambay is serving some useful and legitimate end; or, more probably, it may be that somebody is holding out for a bribe before he will permit the goods to be moved. On the off chance that this judgment should come to the notice of some responsible official who is both honest and reasonably intelligent, I venture to point out that the goods in suit might usefully be made available to would be purchasers. But, in any event, no official corruption or stupidity can convert the adventure on which the parties embarked into a patriotic one.

16. By his solicitor's letter of July 21, the plaintiff demanded the amount now claimed and stated that he would claim interest at six per cent, per annum. In the ordinary course this letter would have been received on the 22nd and the defendant had till the evening of that day in which to pay up and look cheerful. He did not do the former: whether he did the latter I do not know.

17. On August 21, 1944, the plaintiff commenced the present proceedings by way of a summary suit to recover the three lakhs he had paid the defendant, who obtained leave to defend, from my brother <NAME>, on October 3, 1944. The general effect of the pleadings I have already endeavoured to summarise, and the following issues have been framed:

(1) Was it ever orally agreed between the parties that the contract goods should be shipped on or before April 30, 1944 ? If not, what was a reasonable time for shipment ?

(2) Was the contract between the parties varied as to counts, as alleged in paragraph 4 of the written statement ?

(3) Were the three lakhs referred to in the plaint paid in respect of the goods obtained by the defendant under the contract as so varied or in respect of some other and what goods ?

(4) On the true construction of the contract between the parties- (") was it the duty of the defendant or of the plaintiff to obtain any export licence necessary for the purpose of conveying the goods to Jaffarabad ? (6) was it the duty of the defendant to get the contract goods to Jaffarabad or merely to use his best endeavours to get the contract goods to Jafferabad ?

(5) Was the contract frustrated as alleged in paragraph 6 of the written statement or at all ?

(6) Were 803 bales or some other and what number of bales obtained by the defendant as agent for the plaintiff ? If so, do those bales, in the events which have happened, belong to the plaintiff?

(7) Were the goods is the last issue mentioned collected at Cambay ? If so, were they so collected by the defendant as the plaintiff's agent ? If so, were they so collected with the (a) knowledge and/or (b) consent of the plaintiff'?

(8) Was the plaintiff at any and what time or times ready and willing to carry out his part of the contract between the parties ?

(9) To what, if any, relief is the plaintiff entitled ?

18. The answers to issues Nos. 2 and 3 are now admitted to be "Fes", and consequently I have dealt with these matters as shortly as I could. Mainly at the suggestion of learned counsel for the defendant, but with the approval of learned counsel for the plaintiff, issue 4 was dealt with first with the object of saving time. In fact, Mr. <NAME> for the defendant was unable to keep his argument on this question and on the legal aspects of issue 5 in separate and watertight compartments, and I have in fact heard-with great interest and pleasure-all his submissions on both these topics.

19. I framed the second part of issue 4 on a suggestion which it seemed to me the written statement implied, but in fact it has not been, and could not be, seriously contended that the contract in question was merely a contract to endeavour to ship certain goods: it was an absolute contract to ship them with a special provision as to what should happen if that proved impossible: and obviously the goods could not be shipped at Jaffarabad, (which was admittedly the contemplated port of shipment) until they had been got there, or failing that, until other goods of the same description had been obtained at Jaffarabad.

20. Issue 4(a), like the latter part of issue 1, is a question of construction. The contract is in writing, and any ambiguities in it are patent ambiguities: None of the provisos to Section 92 of the Indian Evidence Act is applicable and therefore the materials I am allowed to use are, first and foremost, the grammatical and ordinary meaning of the words used taken as a whole, and, secondly, the surrounding circumstances which must have been present to the minds of both parties. If the grammatical and ordinary meaning of the words produces an absurdity or a repugnancy with the rest of the instrument, I may depart from it so far as may be necessary to avoid that absurdity or repugnancy, but no further. (See the famous passage in his speech in <NAME> v. <NAME> (1857) 6 H. L. C. 61, 106 often referred to as Lord "<NAME>'s "Golden Rule")- The rule may work hardship in some cases and possibly-though I am by no means so persuaded -this is one of them: on the whole it is undoubtedly productive of infinitely more good than harm. I am also entitled to imply a term, if it is necessary to give the contract business efficacy, but not otherwise. (The Moorcock (1889) 14 P. D. 64). <NAME> well known judgment to that effect in that case has subsequently been further explained by that other great commercial Judge, <NAME> The very clear test which the latter held to be applicable was this: let it be supposed that at the time of contracting the question of expressly including the term sought to be implied had arisen. If the <ORG> is satisfied that the parties would both-not one, but both-have said, "We need not bother about that, it is too obvious"-then the term should be implied: but otherwise it cannot be.

21. I now look at this contract, bearing these weighty pronouncements in mind. It imposes on the defendant, as it seems to me, four duties, two absolute and two contingent, namely, (1) To buy the goods; (2) to ship them at Jaffarabad; (3) if (2) proved impossible, to refund any money paid to him by the plaintiff; (4) to make the like refund if after shipment the ship failed to reach the high seas.

22. It is a hybrid contract, being in the main one of agency and in part one of guarantee, though in fact the latter part never came into operation.

23. Clearly there is no express term that the plaintiff should obtain any licence whatsoever, and I am quite unable to see why one should be implied. If I agree for Rs. 500 to go from here to Delhi there cannot, in the light of The <NAME>, or of <ORG> test, be an implied term that the other party to my agreement should buy my ticket for me: indeed, the present case is even clearer than that because there was an express term that the plaintiff should pay to the defendant the defendant's expenses of performing his part. It must, therefore, have been for the defendant to do the work and incur, in the first instance, the expense (if any) of getting the necessary licence, which expense (if any) he would be entitled to be reimbursed; or if he did not like actually to put his hand into Ms pocket, it was for the defendant to ascertain the expense and claim it in advance from the plaintiff. The latter he never did. The only decided case (so far as I can discover) which even superficially conflicts with this view is <CITATION> .  2 K. B. 784, but the facts there were quite different from the present facts. In that case oil, for the export of which during the 1914-18 war a licence was required, was sold f.o.b. Manchester. It was held that it was for the purchaser to get the licence. But why ? Simply because it was an ordinary f.o.b. contract and therefore it was the vendor's duty merely to put goods of the contract quantity and description on board a ship nominated by the purchaser: it was for the latter to nominate an effective ship, i.e. a ship both legally and physically capable of carrying the goods (see per Scrutton. L.J. at p. 798). The obtaining of the licence was no more the business of the vendor than the necessary repairs would be if the buyer had nominated a ship with a hole in her bottom. The present contract was not a contract of sale at all but one of agency, as, indeed, Mr. <NAME> rightly admits: but, he says, "it was for the plaintiff to do all essential things as I was only an agent." Carried to its logical conclusion, this argument means that to earn his remuneration an agent need do nothing, or, at all events, nothing that matters: which is absurd. The answer to this issue, is, therefore, (a)-Of the defendant; (b)-The former,

24. Really, the main part of Mr. <NAME>'s able and interesting argument dealt with issue 5, assuming for its purpose the facts to be as his client contended. I regret that as I was at all material times in charge of the miscellaneous list it was not possible to hear that argument with anything approaching continuity, but that was the fortune of war, and I have done my best to follow it with the attention it deserves. I do not think that I am doing it any injustice by summarizing it into two cumulative or alternative propositions, viz.

(1) On a true construction of the contract in suit "inability to ship the goods" only begins when the goods are at the port of shipment:

(2) My contract was frustrated by the action of <ORG>: consequently I am released from its further performance.

25. I cannot see the force of the first proposition once it is determined that it was for the defendant to do whatever was needful to get the goods to Jaffarabad. In saying this I assume that other goods of the contract quantity and description were not obtainable at Jaffarabad. This assumption is in the defendant's favour, because if such goods were obtainable, he might be liable not merely to refund the plaintiff's money but to pay him damages as well. You cannot ship goods until you get the goods to the ship or the ship to the goods, and it was the former that had to be done in the present case. If that essential preliminary could not be done, shipment was just as impossible as it would have been if the goods had been got to Jaffarabad but all the stevedores of that port had been on strike. Suppose that someone is good enough to invite me to lunch with him at 1 p.m. on a Wednesday in term time at <ORG>. I should answer, with regret, that I could not do so, because my duty required me to be at <ORG>, several miles away, at the time in question. My would-be host would surely be himself inaccurate if he charged me with inaccuracy in the use of language, saying, "It is not that you can't lunch with me but merely that you can't come to <ORG>." I should rejoin, if I were to pursue such an unprofitable argument, "If I can't come to <ORG>, a fortiori I can't lunch with you there," and I should have thought this was obviously correct. According, however, to Mr. <NAME>'s contention, inability to lunch would only arise if (my board for the day having miraculously collapsed) I made my way post-haste to <ORG> and arrived by one o 'clock, but on arrival was prevented from consuming my host's good cheer by a fit of apoplexy or an attack of tetanus, or some such cause, I think this argument carries its own refutation with it: for it must, surely, be conceded that the defendant here was either "able" or "unable" to effect shipment of the goods within the meaning of the present contract. If, therefore, he was not "unable" to do so, it means that he was "able" to do so: that is to say, that he was "able" to ship at Jaffarabad goods which he could not get to Jaffarabad- which is absurd.

26. Turning to Mr. <NAME>'s second contention, the doctrine of frustration has been one of gradual growth. The general rule of law (exemplified in its full harshness in <NAME> v. <NAME> (1641) Aleyn 26) was that a man, come what may, must either perform his bargain or pay up. If he failed to provide in his contract against the event which happened, more fool him. An apparent exception to this was, however, early recognised in contracts of which the continued life of a particular human being formed the basis. In contracts for personal services, for example, there is no implied covenant by the servant that he will keep alive till the end of the period of his service, and a suit for damages against his personal representative for breach of contract by dying is, so far as I am aware, unknown. This is very notable, because, the death of the servant being inevitable sooner or later, the parties might very well have contemplated the possibility of its occurring during the term of the contract and provided therein what was to happen if it did. Doubtless, there is no reason why a man should not by apt words covenant that he would not die before a stipulated date, but I doubt if anyone has even seen or heard of such a contract.

27. The law advanced a considerable step in <NAME> v. <NAME> (1868) 8 B. & S. 820 where it was held that the continued existence of a particular thing, in that case a music hall, formed the basis of the parties' contract and that the casual destruction of that thing discharged each party from further performance of the contract, although there had been no breach of it by the other.

28. The next important development occurred in consequence of the postponement of King Edward VII's coronation, when the happening of a particular event was recognised as a possible "basis for the contract", so that its failure to happen discharged the contract. <NAME> v. <NAME> [1903] 2 K. B. 740 and <NAME> v. <NAME> [1904] 1 K. B. 498 are cases of this period. In the latter case it was held that rent already paid for a room from which to view the coronation procession could not be recovered even though the contract was frustrated by the postponement of the coronation. The happy lessor was thus, no doubt, enabled to let the room all over again to someone else when the coronation did take place, and so reap a second harvest, while the lessee was left lamenting. It was not an ornament of common law and is now, happily, overruled.

29. The Avar of 1914-1918--till lately called "Great"-witnessed a further development, in the recognition by decisions of <ORG> of the continued existence of a given state of things, including a given state of the law, as an element so fundamental in some contracts (such as charterparties and building agreements) that its cessation frustrated those contracts. To this epoch belong, amongst other important decisions, <ORG>, Tamplin Steamship Co., Ld. v. <ORG>, Ld. [1918] 2 A. C. 397; <ORG> v. <ORG>, Ld. [1918] A. C. 119 and Bank Line, Ld. v. <ORG> [1919] A. C. 485. In many of the so-called "Great War" cases, frustration was held to have been brought about by a change in the law of the land-not the physical impossibility, but the supervening illegality, of carrying on the original adventure was held to have discharged the contract. This well illustrates the proposition that the doctrine of frustration is not really an exception to the rule that a man must pay damages if he breaks his contract, for there can be no default in not doing that which the law prohibits. Lord <NAME> said of the doctrine o£ frustration in Denny Moti & Dwkson, Ld, v. <NAME> & Co., Ld. [1944] A. C. 265, 274 (p. 274) = I should prefer to describe it as a substantive and particular rule which the common law has evolved. Where it applies there is no breach of contract. What happens'is that the contract is held on its true construction not to apply at all from the time when the frustrating circumstances supervene. From that moment there is no longer any obligation as to future performance, though up to that moment obligations which have accrued remain In force.

His Lordship then deals with the case of a contract for personal services, which I have already mentioned, and then proceeds (p. 274) :-

A rule of this character obviously admits of almost indefinite exemplifications, as numerous and diverse as are the possibilities of the performance of a contract being interrupted by a vital change of circumstances. The law, however, has examined a great variety of cases in which it has held or refused to hold that a contract is nullified as to its future by the impact of a frustrating event. The application of the general principle must depend on the circumstances of the particular case. No detailed absolute rules can be stated. A certain elasticity is essential.

I believe the last judicial echo of the 1914-1918 war was the decision of their Lordships of <ORG> in <NAME> v. <ORG>, Ld. [1926] A. C. 497, where, in a characteristically brilliant judgment delivered by Lord <NAME>, the frustration of a time charter was held to put an end to a reference, therein contained, to arbitration; with the result that when, applying a great deal more elasticity to the law than Lord <NAME> afterwards considered essential, an arbitrator awarded damages for subsequent non-performance to the disappointed party, he was acting without jurisdiction. In one respect, which I shall point out later, this is the strongest decision in the defendant's favour.

30. During the present, or we may possibly hope, immediate past, war the doctrine again engaged the attention of the highest tribunal in Great Britain on several occasions, including <ORG>'s case (supra). Perhaps the most noteworthy of these is <NAME> v. <ORG>, Ld. [1943] A. C. 83 where <NAME> v. <NAME> (supra) is overruled. The <ORG> also took a hand in the matter by producing the Law Reform (Frustrated Contracts) Act, 1943. The unlamented demise of <NAME> v. <NAME> is not of direct importance to this country where the law, thanks to Section 65 of the Indian Contract Act, was at all material times more in accordance with the (in Lord <NAME>'s view) more civilized law of Scotland. But it is of some indirect importance in the present case as showing that, even in darkest England, money paid pursuant to a frustrated contract, the payment of which produces no benefit to the payer, may be recovered from the payee, and that in a case in which the parties have not expressly provided that it should be so repaid.

31. Though the law of frustration has been long developing and though the topic has been repeatedly considered by the very highest tribunals, I am not aware of a single case in which that doctrine has been held applicable to an express contract to repay money in case of the supervening impossibility of performance of a major obligation. It is rightly conceded that it is open to parties to make their own bargain about this or, in general, any other matter: nor could one doubt that if two citizens, foreseeing the possibility of an inflammation of the Royal appendix or of an abdication, had agreed for the hire by one to the other of a room to watch a coronation procession on the express terms that the rent should be paid in advance but refunded in case this procession did not take place, the <ORG> would not, even in the unenlightened ago in which <NAME> v. <NAME> was decided, have allowed the lessor to keep the rent, even if he had incurred expense on making the room fit for the lessee's brief occupation. There is, to the best of my belief, no reported instance of a claim under such a contract, but the whole ratio decidendi in the decided cases where the doctrine has been held applicable is that the frustrating event was outside the contemplation of the contracting parties. The exact opposite is the case here-they have in terms provided what was to happen in case of impossibility of performance-unless indeed I am bound to give the words "In ease I am unable to effect shipment of the goods" a meaning more restricted than their grammatical and ordinary meaning. In, I think, most of the reported cases in which war or one of its effects was held to be a frustrating cause, the contract in suit was made before the war actually started. The <NAME> case (supra) is a good example of this class. No ordinary and reasonable man, contracting even in July 1914, could have been expected to foresee the wholesale interference with the liberty of the subject which even the so-called "Great" war produced-even in the countries which were fighting to preserve that liberty. The only reason why the remedy was not as bad as the disease was that the evils of the remedy were for the most part less abiding than those of the disease. It is true that the phenomenon of war was not unknown before August 4, 1914; but that which we are pleased to call "civilization" advances-or retrogresses (whichever be the correct expression)-not steadily but by jerks; and an ordinary man contracting in July 1914 could no more have predicted, by reason of what had happened in the Napoleonic, Crimean and Boer Wars, the state of things which would be prevailing in England in (say) 1917 than could such a man, contracting in August 1939, have foreseen the atomic bomb. Cases of this class do not, I think, assist the defendant, who made his contract when the war was, and all its consequences were, in full swing.

32. Cases such as the Sank Line case (supra) (described by Lord <NAME> at p. 453 as "a very near thing"), <ORG> v. <NAME> (1917) 84 T. L.R. 70, (said by no less an authority than Pickford L.J. to be "very near the line") and <NAME> case (supra) are more helpful to the defendant. So, to take a case arising out of the 1926 "General Strike" is The Penelope [1928] P. 180. In this last mentioned case, the contract was made when the industrial horizon of Great Britain was heavily overcast, and contained a common form of strikes and lockouts clause; but the contract itself showed (which I feel to have been fundamental in Lord <NAME>'s judgment) that the parties did not contemplate anything comparable to that which happened, viz. the impossibility of shipping any coal at all from any port whatever in South 'Wales or elsewhere in Great Britain for a period of many months. The Bank Line case is sharply contrasted with <NAME> case: the latter was that of a time charter made before the war, and already in operation at its outbreak, containing a "restraint of princes" clause and an express power to sublet. It was held not to be frustrated by the requisition of the chartered ship or even by her conversion from an oil tanker into a troop ship. In the former case, a time charter made after the war contained a "restraint of princes" clause, but the ship was requisitioned before she was even delivered to the charterers at all. Despite the fact that the contract was made during the war, the adventure was held to be frustrated by the requisition of the ship, largely because at the time of that event, as opposed to the time of the trial, it was completely uncertain and unascertainable when, if ever, the ship would be available for purposes of the charter, which destroyed the identity of the chartered service. In the <ORG> case this principle was extended from a time charter to a voyage charter at time rates, and again there was a "restraint of princes" clause. Here also the ship never became available to the charterers. As the case was said to be, and if I may say so, obviously was, "very near the line", I must be very hesitant of extending it. In no one even of these cases was there a provision in express terms as to what was to happen in case the main object of the contract proved impossible of attainment, which in my humble judgment distinguishes them from this case without entering into other, and more minute, possible distinctions, <NAME> case is, therefore, I think, the most helpful to the defendant. Its general effect I have already stated. In dealing with it I feel that it is most important to notice the exact terms of the reference therein discussed. It appears from p. 498 of the report that they were, so far as material, as follows:

Any dispute arising under the charter shall he referred to the arbitration of two persons...etc.

Could a dispute which arose only at the moment when, as their Lordships held, the charter was brought to an end and both parties were released from further performance of its obligations, be held to arise "under that charter" Their Lordships held that it could not: the termination of the charter as a whole terminated the reference as surely as the complete collapse of a house would involve the destruction of a picture attached by a nail to one of its walls. But supposing the parties had added after the words "under this charter" some such expression as "including any question as to its frustration"-what then? I cannot doubt that then their Lordships' decision would have been in the opposite sense-there would in reality have been two contracts written on the same piece of paper, the one frustrated, and the other not. Such, unless indeed I ought to give a very restricted and unnatural meaning to the words I have already, set out, is the present case. For what, it may be asked, has happened which renders it physically or legally impossible for the defendant to pay the plaintiff Rs. 3,00,000? The answer must be ''nothing." In these circumstances, I feel that my decision on this question must turn not on authority but on pure construction of the particular contract before me. Why should I give to the words in question a narrower meaning than that which they grammatically bear?

33. Substantially, two reasons for this are advanced. First, that if I do not do so the bargain is an absurdly hard one on the defendant. Secondly, that some effect must be given to the presence, in relation to the ship's possible failure to reach the high seas, of the words "for any reason" and the very conspicuous absence of those words from the clause relating to the defendant's inability to effect shipment.

34. I see little substance in the former argument. There is a loss, and as the parties have not agreed to share it, one or other of them must bear it. It seems to me no more unreasonable to throw it on one than on the other. Mr. <NAME> contends, in effect, that if the defendant was to bear the loss, it makes the contract, from the plaintiff's point of view, one of "heads-I win: tails-- you lose." It means that the defendant carries the whole risk. I do not think that is really correct: the plaintiff took the risk, common to all contracts involving credit and trust reposed by one man in another, of the insolvency or dishonesty of the defendant: all maritime risks after the passing by the ship of the three mile limit were for the plaintiff's account. He might minimize the latter by insurance, if he chose, and if the defendant gave him adequate notice of shipment (which he was not bound to do), but if so, lie would have to pay the premium and to chance his arm as to the solvency of the underwriters-a not great, but still appreciable, risk. Last but not least, a change in the legal or economic state of things at Khoraroshare might have made a highly profitable contract into a disastrous loss: no doubt, this was highly unlikely, but unlikely things sometimes happen, and this risk was entirely the plaintiff's. In any event, if the defendant has made not merely an unpatriotic but also an improvident bargain, I should be the last to mend it for him even if I had (as I have not) power to do so: and certainly the contract according to its ordinary and grammatical meaning is not so absurdly one sided as to justify my departing from that safe and sound standard of interpretation. I feel all the more confident about this as it is, as I think, clear that the defendant, and not the plaintiff, in the events which have happened, is the beneficial owner of the goods, for what they may be worth. This will, at any rate, minimize his loss and possibly enable him to pay the plaintiff his three lakhs without undue inconvenience. For reasons already indicated I do not particularly rejoice at either event.

35. Conversely, I feel very strongly the force of the second of these arguments. I must, if I can, give some meaning and, preferably, a sensible one, to every word or series of words, and if the presence in one part of the contract of a phrase absent from another part makes the latter in its ordinary meaning nonsensical, I should be fully justified in seeking some other meaning for the latter. According to Mr. <NAME>, the only way to make the two material parts of paragraph 4 of the letter both sensible when read together is to hold that "In case I am unable to effect shipment" means "In ease I am unable by reason of any cause now in our mutual contemplation to effect shipment,'' while "if the country craft for any reason fails to cross the territorial waters of Jaffarabad" means what it says, except, of course, that "Jaffarabad" means "Janjira".

36. This contention, though superficially most attractive, is, I think, fallacious. The causes which might lead to failure of shipment are of two classes-the inability, through circumstances beyond his control, of the defendant to do so, or his unwillingness to do so-bad luck on the one hand, and default on the other. Similarly, the ship might fail to reach the high seas for causes either external or internal to herself and her company, or, indeed, through a combination of such causes. She might be overwhelmed by a gale, captured by a pirate, torpedoed, or swallowed whole by some as yet unknown sea monster, before she had sailed one marine league. Equally, she might fail to accomplish that modest feat through mutiny, barratry of the master or mariners, or through the drunkenness of the former, the latter, or both.

37. As regards failure to ship by the default of the defendant the contract is silent and, obviously, the parties left the law to take its course as to what should happen in this event. If- in preference to shipping the plaintiff's goods the defendant had sold them to the highest bidder at Jaffarabad, he would have had to pay damages which must have exceeded, and might have far exceeded, three lakhs: obviously, the parties did not say anything about this because it was unnecessary to do so, as it was too obvious that such would be the ease. The express provision for a refund, etc., in case of inability to ship was therefore purposely, I think, limited to inability. To make it clear that this was not the case as to failure of the ship to sail three marine miles, but that as to this the defendant was, shipment once having been effected, an absolute guarantor, the words "for any reason" were necessarily included where they are included and, I think, deliberately omitted, as being unnecessary, where they are omitted. By the one clause the defendant limited and defined his liability in the event of inability to perform his bargain: by the other, he unconditionally guaranteed that a particular ship with particular goods on board would sail to a point one marine league from low watermark of ordinary spring tides, but no further, and waived his right to remuneration if this event should not occur. That seems to me a perfectly reasonable and sensible contract, and to involve no such absurdity as to compel or permit me to construe words as meaning something different from that which, according to their grammatical and ordinary interpretation, they mean.

38. To summarize my conclusions on this issue, they are these: I assume in the defendant's favour that it was the action of <ORG> which prevented his shipping the goods within the time and at the place the contract contemplated,-as the goods were not apparently held up till June 14, and the export licences he had somehow come by, in someone else's name, had by the time long expired, and as the monsoon might be expected on or about June 21, this is an enormous assumption-still the contract to pay money in case of inability to ship is most clearly severable from the contract to ship, and the frustration, if any, of the one does not affect the other. It is also a very great assumption to assume that the action of <ORG> was outside the contemplation of the parties at the time of contracting, for I apprehend that <ORG> was, technically at the least, at all material times a belligerent, and even if she were not, modern war is, amongst its other evils, grossly infectious. But making every such assumption, the answer to this' issue must still be:-

Not so far as the defendant's agreement to repay the sum in dispute is concerned.

39. That issue being disposed of, the answers to the remaining issues are, really, very simple.

40. Each party, despite their desire to dispose of issues 4 and 5 first "to save time" has ardently desired to adduce oral evidence as to other matters which (those issues being answered) do not arise. Had they done so, no time at all would have been saved. I should have been the last to stand in the way of either party in this case who wished to expend money on such deserving objects as Mr. <NAME> for the plaintiff, Mr. <NAME> for the defendant, or the solicitors instructing either of them, if it were not for the facts that I do happen to preside over a <ORG> and not a moot club, and that there are other litigants who want their oases decided. I know that I "ought not" as a rule, "to dispose of the whole case on a preliminary issue", but the very words "as a rule'' imply the existence of exceptions. Even where, as here, the parties, through their counsel (with exemplary politeness) "threaten and intend" to carry the matter to their Lordships of <ORG>, I cannot see that I am justified in indulging in what may be a waste of public time for their benefit where, as here, I have a commercial dispute involving (I think) only the construction of an admitted document in the light of admitted events. If I am wrong, it is true, a new trial may be necessary on some or all of the issues: but, if 'f may be forgiven for saying so, it is just possible that I am right: in any case, if there is a new trial, the responsibility is mine and not that of either party.

41. Having said that, I now turn to the remaining issues.

42. 1. It will, again, be convenient to answer the latter part first.

43. I have to extract the answer from the written contract and the surrounding circumstances. Mr. <NAME> contends that the parties contemplated shipment by a date sufficiently early to enable a country craft to clear the monsoon area before the monsoon. Mr, <NAME>, that having regard to the date of the contract, shipment shortly after the monsoon-up to, say, the end of October 1944-would still be within a reasonable time. He, of course, admits that the monsoon itself was, so to speak, a "dead period". One notorious fact about modern war is that circumstances during it change very rapidly and radically. A good contract in May might well have proved a crazy one in October. In these circumstances, and all others, I think that, Whatever might be the case about a similar contract made on March 7 in normal times, the latest reasonable date of shipment was May 31, Even if 1 am wrong, it does not greatly matter, because though the suit might possibly have proved premature if the goods could have been shipped at Jaffarabad on, say, October 30, in fact they could not have been, but have been immobilized right down to the present date. A fortiori, therefore, the answer to the first part of this issue is of completely acadamic interest. v ,

44. The answer is: "The first part does not arise: as to the second' part, on or before May 31, 3944." The answers to issues 2 and 3 are in "each case now admittedly "Yes." Issues, 4 and 5.1 have already answered.

45. Issue 6 is a little complicated, but again the material part of. it is the second, Again I make some very big assumptions in the defendant's favour, and in particular assume that Mr. <NAME> was the plaintiff's agent to consent to a course of dealing, which otherwise would be, in the light of such well known authorities as <NAME> v. <NAME> (1865) 3 H. & C. 700 and <NAME> v. <NAME> (1874-75.) L.R. 7 H. L. 802, a clear breach of the defendant's duty as agent of the plaintiff. <ORG>ere this not so, the plaintiff would be entitled to the relief he now asks, not under any special term of the contract at all, but on the ground that the contract which the defendant agreed to make on his behalf has never been made and, therefore, the consideration for his, the plaintiff's, payment of three lakhs has wholly failed. In this event, of course, no property would :have passed to the plaintiff. But >even on the assumption I propose to make, the same result as regards property follows, for nobody on earth could at any time definitely have said: which specific articles are and which are not the property of the plaintiff. In these circumstances it is absolutely impossible to hold that the property in any of the goods passed to the plaintiff. See <ORG>ait, In re [1927] 1 Ch. 606, where wheat was sold c.i.f. England to <ORG> and, in part, resold c.i.f. England to X, <ORG> becoming bankrupt before any part of the wheat had been appropriated to X. It was held by a majority of <ORG>, reversing the judgment of <ORG> and restoring that of the <ORG> Judge, that without prejudice to any right of proof X might have, the whole of the wheat passed to was trustee for the benefit of his creditors. :

46. But even if I am wrong about this and if the title to some (though who can say which?) of the goods at Cambay passed here to the plaintiff, in the events which have happened he is now entitled to none of them. It was a most clearly implied term that if the plaintiff should elect, as he admittedly has done, to have his money back rather than to take the goods, if any, for what they .may be worth, the defendant is entitled to make what he can of those goods. To maintain the contrary (which I need hardly say Mr. <NAME> has never done) would be to deny the proposition (unfortunately, but notoriously, true) that you cannot both eat your cake and have it. Applying Lord Justice <NAME>'s test, let us suppose that on March 7, 1944, this possibility had occurred to the parties. I cannot doubt that if, as I am prepared to assume, they are reasonable people, 'Some such dialogue as the following would have taken place:

Defendant: "What is to happen if I buy goods for you, cannot ship them, : and therefore pay you back your money ?"

Plaintiff: " Well, you'll be entitled to the goods."

Defendant: "I think we'd better provide for that in the contract."

Plaintiff: "Surely, we needn't bother-it is too obvious."

Defendant. "Yes, I agree."

47. The answer to this issue is, therefore, "Strictly, it does not arise: but the articles alleged by the defendant to belong to the plaintiff do in fact belong to the defendant."

48. Issue 7 consequently does not arise, nor, since the plaintiff is only claiming what he is, does issue 8. As far as the now material part of the contract is "concerned, there was nothing for the plaintiff to do except to receive his money, and it hardly needs saying that he was always ready and willing enough to do that.

49. The result of all this is that there will be a decree in favour of the plaintiff for three lakhs with interest thereon from July 23, 1944, to this date at six per cent, per annum simple, costs to be taxed, including costs reserved, and interest on the aggregate decretal amount at six per cent, per annum simple till payment.