P L D 1968 Karachi 263 (PLP)

(3) Whether the defendant No. 1 informed the consignee bank that he had delivered the goods to some person other than the consigned without the presentation of Biltis under instructions from defendant No. 1 ? If so, what is its effect ?. (4) Whether the defendant fraudulently delivered the goods to some person other than the consignee ? . (5) Whether the defendant No. 1 failed to deliver the goods to the consignee in terms of his entrustment ? (6) Whether the defendant No. 1 caused loss of the goods by fraudulent or negligent act of himself or of his agent ?

6. At the hearing of the case before me, Mr. A. H. Pirzada, the learned Advocate for defendant No. 1, stated that this defendant accepted his status as common carrier under the Car riers Act, 1865, and Mr. Munawar Abbas, the learned Advocate for the plaintiff, stated that the additional issues were strictly not necessary, as the questions raised under them were already covered by the issues framed on 13‑4‑1964. On this statement; the additional issues were ordered to be struck off by moon 15‑8‑1967. With regard to issues Nos. 2 and 3, as settled on 13‑4‑1964, both Mr. Munawar Abbas and Mr. Pirzada, agreed that these issues‑ raised the same question that is, "whether the goods in suit were rightly delivered to Sheikh Abdul Ghani at Lyallpur ? If so, what is the effect." On proceeding to trial, the parties tendered documentary as well as oral evidence The plaintiff examined himself, and five witnesses, namely, Irfanur Rehman, Assistant Officer of the Bank of Bahawalpur, Haji Bilawal from Habib Bank Ltd., Abdullah, Senior clerk of United Bank Ltd., Ansarul Hasan of the Standard Bank Ltd. and C. G. Bhan, Examiner of questioned documents. On the defendants' side, Mahmoodul Hass in partner of defendant No. 1., and Abdur Rehman, defendant No. 2 were examined in addition to Sheikh Abdul Ghani and his clerk Muhammad Jamil, and Mr. Muhammad Khalil Khan, Examiner of questioned documents. After examining this evidence and after hearing the learned counsel for the parties I would decide the issues as follows :

7. Issues 2 and 3.‑‑For the sake of convenience I will first deal with issues Nos. 2 and 3, . which raise the main question in the case, as to whether the consignments in suit were rightly delivered by the defendants to Abdul Ghani. The admitted position is that the consignee in all the truck receipts, that is, Exhs. 7/2, 8/1 to 8/11, 9/1 to 9/5 and 10/1 to 10/7, is one or the other of the four banks, namely, Habib Bank Ltd., United Bank Ltd., Standard Bank Ltd., and the Bank of Bahawalpur Ltd. Accordingly, under the contract of carriage, the goods were deliverable to or to the order of the bank shown as consignee in the truck receipt. The defendant's stand, however, is that the goods were delivered to Abdul Ghani on the instructions of the plaintiff himself and for this purpose, reliance is placed by the defendants on the deposition of Abdul Ghani, his clerk Muhammad Jamil and of Mahmoodul Hassan, partner of defendant No. 1 and of defendant No. 2, namely, Abdur Rehman and on the several documents brought on record as Exhs 13, 15. 24 to

34. Butt the sheet‑anchor of the defendants' case is Exh. 13, which purports to be a letter dated 27‑5‑1962 from the plaintiff to Pak Union Goods Transport Co., that is, the defendant No. 2, permitting the delivery of the goods to Abdul Ghani without production of the truck‑ receipts. But the plaintiff denies the genuineness of this document which he claims to 'have been forged by the defendants and Abdul Ghani. This Abdul Ghani deposed in Court that Exh. 13 was given to him by the plaintiff at Karachi, but that the defendant No. 2 still refused to deliver the goods to him, whereupon the plaintiff's son, Muhammad Shafiq, went from Karachi to Lyallpur and pursuaded the defendant No. 2 to act according to the instructions contained fn this document. The witness admitted that on taking deliveries he sold the goods, but claimed that he paid the sale proceedings to the plaintiff's son Muhammad Shafiq. D. W. Muhammad Jamil, the clerk of Abdul Ghani, stated that Exh. 13 was in the plaintiff's writing, with which he was familiar as he used to receive, as Abdul Ghani's clerk, considerable correspondence from the plaintiff. The witness supported Abdul Ghani's version that the defendant No. 2 released the consignments to Abdul Ghani only when the plaintiff's son Muhammad Shafiq personally came over to Lyallpur, and stated further that the sale proceeds were paid over to Muhammad Shafiq. D. W. Mahmoodul Hassan the partner of defendant No. 1, deposed that the plaintiff verbally instructed hits to deliver the goods 2o Abdul Ghani but that this witness was reluctant to accept these instructions, whereupon the plaintiff suggested that defen dant No. 2 should be told on telephone to deliver the goods to Abdul Ghani., According to this, witness, the plaintiff admitted to him to have given a letter of authority to Abdul Ghani for taking delivery of the goods, whereupon this witness's employee, A. R. Butt, wrote Exh. 15 to the defendant No. 2 Authorizing delivery of goods to Abdul Ghani without the presentation of the documents. It was further deposed by the witness that he personally accompanied the plaintiff to Lyallpur for the purpose of recovering the value of the goods from Abdul Ghani,, who, however, took the stand that the tale proceeds had been paid to the plaintiff's son Muhammad Shafiq. D. W. Abdur Rehman, Defendant No. 2, stated that he delivered the goods to Abdul Ghani under instructions contained in Exh. 15 and the instructions given to him personally at Lyallpur by the plaintiff's son, Muhammad Shafiq. According to this witness, even, before he received Exh. 15, Muhammad Shafiq had wanted him to deliver the goods to Abdul Ghani and when this witness refused to do so, he received telephonic instructions from D. W. Mahmoodul Hassan and the plaintiff to give delivery of the consignments to Abdul Ghani.

8. The question is whether the version given by these defence witnesses should be believed. Before making any comments on this evidence, it will be convenient to consider the question whether Exh. 13 is at all in the writing of the plaintiff or contains his signature. With the consent of the parties, this document, together with the specimen signatures of the plaintiff taken in Court, Exh. X‑1, and the copy of Exh. 13 made by the, plaintiff in Court, Exh. X‑2, were sent for the opinion of Mr. C. G. Bhan, Examiner of questioned documents. The report of Mr. Bhan is Exh.

20. According to this report and according to the statement of Mr. Bhan recorded by the Court, neither the signature on Exh. 13 is in the writing of the person who wrote the signature on Exh. X‑1, nor the writing of the text of Exh. 13 is by the person who wrote the writing on Exh. X‑

2. The following reasons are given by Mr. Bhan for this opinion: (i) the writing and the signature on Exh. 13 is in a mote skilled hand than the writing and the signatures on Exh. X‑1 and X‑2, as shown by the formation of the double dot for the letter "Kaf" of word "Bakalam" the loop for the letters "Sath" and "Meem" in the words "Muhammad Sadeeq", the triple not formation for the letter "Pay" of the word "Pak Union", and the dia‑critic signs above letters as " Hamza"(hamza) in Lyallpur, or" Kaynghay" etc. (ii) the detailed design of letters in letter combinations or words shows very marked and characteristic differences when the same words in Exh. 13 are compared with those in, Exh. X‑1 such as the words Karachi, Aslam-o-Alakom, Mal , Shaikh Abdul Ghani Sahib, Suter Mandi , Lyallpur , Bank Say, . (iii) the proportion of length to height of letters, and also their, respective arrangements with respect to each other, letter endings, positioning of dots in similarly read words, is characteristically different in Exh. 13 from those, in Ex. X‑1 and in respect of the signature in Exh. X‑2. (iv) the writing in Exh. 13 is consistently more slanting to its base line of writing than in Exh. X‑1 where, the letters are more upright. (v) Exh. 13 shows a characteristic. habit of the writer, in that the balled heads of the letters " Phay" and " Kaf " in the word "Phaqat "continue to make the loop for "Tuyn" as a " Sath" like head, while a staff is joined into it as a separate stroke, whereas in Exh. X‑1 " Tuyn" is in one pen operation and that like the figure " 6 ": in reverse order, and carrying the stroke upwards to provide the staff.

9. The defendants challenged the evidence of Mr. C. G. Bhan by examining Mr. M. Khalil Khan, another Examiner of questioned documents, who stated that the documents Exhs. 13, X‑1 and X‑2 were in the writing of one and the same person. The report of Mr. Khalil Khan Exh. 22/1, is that there is similarity in the three documents in respect of slant, curves, pen -operation, muscular co‑ordination, line quality, sizing, speed, pen‑pressure, etc., etc. The contest is, therefore, between two examiners of questioned documents and I have to agree with the opinion of the one or the other. Accordingly, I took that opportunity of myself comparing the three documents, Exhs. 13, X‑1 and X‑2, With the assistance of the learned Advocates for the parties. I am of the opinion that Mr. M. Khalil Khan has not come to a correct conclusion. His report suffers from generalities and excessive brevity and vagueness: In the Court he admitted that his eye sight was weak. He also admitted that the letter " Hay" in Exhs. 13 and X‑1 were differently written, and that the ending of the letter " Kaf" in the word "Sadeeq" in Exh. 13 was different from the ending of this latter in the same word in Exhs. X‑1 and X‑

2. My learned brother, Abdul Kadir Sheikh, J. who recorded the statement of this witness, noted at one place that the witness was unable to answer the question as to what was meant by muscular co‑ordination. At another place the learned Judge noted that the witness's answers to question with regard to muscular co‑ordination were given with great hesitation and labour. At the end of this witness's statement, the following further note was made by the learned Judge:‑-- "The statement made by the witness took a long time because the witness found it difficult to explain himself properly. He was not able to understand the questions put to him in the examination‑in‑chief as well as the cross‑examination with the result that most of the questions had to be repeated."

10. A visual examination of the three documents, that is, Exh. 13, Exhs. X‑1 and X‑2, would itself show that Exh. 13 was written by a person different from the writer of Exhs. X‑1 and X‑

2. Exh. 13 is in a mature and skilled hand, that is, it is written by a person who is fluent and is at home in Urdu writing. The documents Exhs. X‑1 and X‑2, on the other hand, are in an immature and unskilled hand, the hand of a person who appears to be a beginner in Urdu writing. The formation of the letters and the words in Exh. 13 are also different from those in Exhs. X‑1 and X‑

2. I should say that no reasonable person could, on visual examination, say that the writer of these three documents is one and the same person. The comparison of the documents made by me, as well as the opinion of Mr. Bhan leads to but one conclusion, which is, that Exh. 13 contains neither the writing nor the signature of the plaintiff.

11. The genuineness of Exh. 13 was also sought to be proved by comparison of this document with documents brought on record from the connected Suit No. 118 of 1963, filed by the present plaintiff against another transport company, namely. Malik Goods Transport Co. These documents are Exhs.8/15 to 8/26 and 9/1 and their photostat copies were brought on record of this suit by order made on 5‑5‑1967 with the consent of the parties as Exhs. 23 to

35. Exth. 35 is the disputed document Exh. 9/1 in Suit No. 118/1963. It bears similarities with the disputed document in the present suit, that is, Exh.

13. But Exh. 35 itself has not been proved to contain the writing or she signature of the plaintiff. With regard to the other documents, Exhs. 23 to 34, they are admittedly in the hand of the plaintiff. These documents were compared by me in Court with Exh. 13 with the assistance of the parties counsel. It cannot be maintained that there are any similarities between Exh. 13 and Exhs. 23 to 34, Exh, 13, unlike the other documents, is in a more mature, skilled and fluent hand. The detailed design of the formation and the structure of the letters and words in Exh. 13, bear marked difference from the design of formation and structure of letters and words in Exhs. 23 to

34. In Exh. 13, the letters end in fine tails or strokes terminating in vanishing lines ; while the correspondingly ended letters in Exhs. 23 to 34 end in heavy strokes. The signatures in Exhs. 23 to 34 are more rapidly written, usually descendent in the arrangement of parts and are more upright than the signature on Exh.

13. It is, therefore, not possible to agree with Mr. Abdul Hafiz Pirzada's contention that the writing and signature of Exh. 13 is identical with the writing and signatures of the plaintiff's admitted documents, that is, Exhs. 23 to 34.

12. It is in the light of this conclusion with regard to Exh. 13 that the evidence of the defence witnesses should be considered. D.Wk Abdul Ghani admitted that Exh. 13 was neither written nor signed in his presence. This document is alleged to have been kept ready by the plaintiff and delivered to the witness after a day or two of his arrival in Karachi. The witness, on his own admission, is illiterate and unable to recognize any writing or identify the writer. Abdul Ghani's clerk, D. W. Muhammad Jamil, also did not witness the writing or execution of Exh.

13. He never saw the plaintiff writing in his presence. His recognition of Exh. 13 as being in the plaintiff's hand is based only on the correspondence alleged to have been received by him as Abdul Ghani's clerk from the plaintiff's firm at Karachi. Both Mahmoodul Hassan, partner of defendant No. 1, and Abdur Rehman defendant No. 2 are interested witnesses. There are inherent improbabilities in the version given by them in Court. The direct relationship under the contract for the carriage of good's was between the plaintiff and the defendant No. 1, and in the ordinary course of business, it is this defendant to whom Exh. 13 should have been addressed. But this document is addressed to defendant No. 2, and no explanation was given by Mahmoodul Hassan as to why his firm did not take a written authority from the plaintiff for making deliveries to Abdull Ghani. Reference may here be made to Ezhs. 8/23 and 9/11, written by defendant No. 1 to the defendant No. 2 on 11th May 1963, in which, after referring to two letters from the Habib Bank Ltd., and the United Bank Ltd., received by the defendant No; 1, an enquiry is made from defendant No. 2 as to whether the goods consigned by the plaintiff were still lying or had been delivered to the banks without presentation of the documents, and that in case of the latter, the defendant No. 2's action would constitute criminal breach of trust, These letters are signed by A. R. Butt as General Manager of defendant No.

1. But Mahmoodul Hassan denied Butt's authority to write these letters and even disclaimed knowledge that these letters were at all written. But this Butt also signed Exh. 15, by which the defendant No. 1 instructed the defendant No. 2 to deliver the consignments in question to Abdul Ghani. Mahmoodul Hassan cannot, therefore, be believed that Exh. 8/23 and Exh. 9/11 were not written in the normal courts of business by the authorized' agent of his firm. The date of Exhs. 8/23 and 9/11 has to be taken note of. It is 11th May 1963, whereas the date of Exh. 13 is 27‑5‑1962, and of Exh.15 26‑5‑1962. Why should defen dant No. 1 hold out threat of action for criminal breach of trust to the defendant No.2, when the defendant No. 1 itself instructed the second defendant by Exh. 15 to give deliveries to Abdul Ghani without presentation of the documents of title to the goods' ? No satisfactory explanation is given by the defendant No. 1 on this point. Nor was A. R. Butt called as witness to explain the circumstances under which these documents were written.

13. The four defence witnesses, namely, Abdul Ghani Muhammad Jamil, Mahmoodul Hassan and Abdur Rehman, have all set up the case that the plaintiff's son Muhammad Shafiq, visited Lyallpur for the purpose of facilitating deliveries of the consignments to Abdul Ghani. Abdul Ghani and Muhammad Jamil stated that the sale proceeds of these consignments were paid to this Muhammad Shafiq. Mahmoodul Hassan stated that Abdul Ghani in his presence informed the plaintiff that the sale proceeds had been received by Muhammad Shafiq. It was admitted by Muhammad Jamil that usual books of accounts were maintained for the business of Abdul Ghani. But these books were not produced to show payments to Muhammad Shafiq. Abdul Ghani pleaded that he had not preserved these books. Though Abdul Ghani had no knowledge as to what relation Muhammad Shafiq had with the plaintiff's business, still he paid the sale proceeds to Muhammad Shafiq, without obtaining letter of authority from the plaintiff himself, or even receipts from Muhammad Shafiq for payments made to the latter. Abdul Ghani could not even remember whether he wrote any letter to the plaintiff informing him that the sale proceeds were being paid to Muhammad Shafiq.

14. Thus, the version set up by these four defence witnesses appears to be clearly false. The story given by them in Court was invented to save the two defendants from the consequences of the wrongful delivery of the consignments of yarn to Abdul Ghani. The evidence of these persons does not prove that Exh. 13 was at all written or signed by the plaintiff, authorizing delivery of the consignments to Abdul Ghani. The conclusion, therefore, is that the goods in question were wrongfully delivered to Abdul Ghani by the defendants Nos. 1 and 2, who were clearly in collusion with the former.. The issues Nos. 2 and 3 are decided accordingly.

15. Issue No. 1.‑This issue may be divided into two parts as follows: (i) What was the value of the consignments sent by the plaintiff to Lyallpur through defendant No. 1 and (ii) What is the effect of the plaintiff's failure to declare the value of these consignments at the time they were booked with defendant No. 1 for Lyallpur: On the first part, D. W. Abdul Ghani himself admitted that he obtained delivery of 2 cases and 57 bales of yarn of the value of Rs. 83,000 to Rs. 84,

000. This witness also admitted receipt of invoices which, however, he failed to produce in Court. On the other hand, the plaintiff stated that the goods were of the value of Rs. 97,377,46 and supported his statement by the invoices Exhs. 10/15 to 10/21, 11/14 to 11/28 and the demand drafts, Exhs. 7/4, 8/12 to 8/22 and 9/6 to 9/10. The difference between the values given by the plaintiff and Abdul Ghani is only of Rs. 13,377,

46. But it is' the plaintiff who should be believed on the question of valuation of these goods. He has produced the invoices and the demand drafts. Abdul Ghani admitted receipt of invoices but failed to produce them in Court. No evidence was led by the defendants to rebut the plaintiff's evidence in this respect. The finding, therefore, is that the value of the goods, which were wrongfully delivered by the defendants Nos. 1 and 2 to Abdul Ghani, was Rs. 97,377.46.

16. With regard to the second part of issue No. 1, the defendant's learned Advocates placed reliance on section 3 'of the Carriers Act, 1865, which is as follows: "No common carrier shall be liable for the loss of or damage to property delivered to him to be carried exceeding in value one hundred rupees and of the description contained in the schedule to this Act, unless the person delivering such property to be carried, or some person duly authorized in that behalf, shall have expressly declared to such carrier or his agent the value and description thereof." The question for consideration is whether the present is a case of loss or of damage to the goods delivered to the defendant No.1 for carriage to Lyallpur. "Damage" in section 3 is damage to the goods themselves and it is not the defendants' case that the cause of action in this suit is based on any such damage. But it was contended that it is a case of loss of goods, and since the plaintiff failed to declare their value to the defendant No. 1, neither this defendant nor the defendant No. 2 could be held liable for this loss. In my opinion, the word "loss" in section 3 of the Carriers Act, 1865, does not refer to loss caused by wrongful delivery of the goods by the carriers, "loss" in this section means loss of goods from the custody of the carriers by abstraction of parcel by stranger or by the carrier's servant, not amounting to a criminal act, or by a carrier or his servant losing the goods in transit or by mislaying them, so that it was not known when to find them when they ought to be delivered. This was the view taken by the Exchequer Division in Hearn v. The London and South Western Railway Co. (156 E R 660) with reference to section I of the English Carriers Act, 1830; which is similar in terms to section 3 of our Carriers Act. I think, and if I may so with respect, Parke, J., who gave the judgment in this case, correctly gave the meaning I have adopted of the word "loss". Thus the term "loss" could not be applied to cases where goods' have been wrongfully delivered or intentionally mis-delivered by the carriers. In the present case, the goods were wrongfully delivered to Abdul Ghani and the two defendants had full knowledge that this delivery was against the terms of entrustment embodied in the truck receipts. This was an act in the nature of breach of trust, and even if it is assumed that it is a case of "loss" of goods within section 3, the carriers would not be protected under the Carriers Act itself from this kind of loss. Section 8 of the Act makes every common‑carrier liable to the owner far loss of or damage to any property delivered to such carrier, where such loss or damage arises from the Criminal Act of the carrier or any of his servants or agents. The delivery of the goods by the two defendants to Abdul Ghani, against the terms of entrustment, wag a criminal act, and even if the goods are deemed to have been lost, the, carriers cannot, by reason of the provisions of section 8, claim protection on account of the plaintiff's failure, to declare the value of the goods. The finding under this part of issue No. 1', therefore, is that the failure to declare the value of the goods has no effect on the liability of the present suit.

17. Issue No. 4.‑No arguments ware addressed on this issue and. it was not shown as to how Sheikh Abdul Ghani is a necessary party to an action against the carriers under the contract of carriage. The issue is, therefore, decided against the defendants.

18. Issue No. 5 ‑Malik Muhammad Din, the learned Advocate for defendant No. 2 did not address any arguments on this issue. It cannot be said that the defendant No. 2 has been improperly joined as party to tie suit. It has been found that defendants Nos. 1 and 2 acted in collusion with Sheikh Abdul Ghani and wrongfully delivered the consignments in suit to the latter. The defendant No. 2 is liable for the plaintiff's claim in suit equally with the defendant No. 1.

19. Issue No. 7.‑Before dealing with Issue No. 6, it would be convenient to discuss Issue No.

7. This issue has two parts: (i) Whether the suit is barred under section 10 of the Carriers Act ? (ii) Whether the suit is barred under section 115 of the Evidence Act ? Section 10 of the Carriers Act provides that no suit shall be instituted against a common carriers for the loss of, or injury to goods entrusted to him for carriage, unless notice in writing of the loss or injury has been given to him before the institution of the suit and within six months of the time when the loss or injury first came to the knowledge of the plaintiff. "Injury" here means damage to the goods. As has been noted above, the cause of action in this suit is not based on damage to the goods but on wrongful delivery or mis-delivery. It is, however, contended that it is a case of loss of the consignments in question and, therefore, this suit is not maintainable, as six months notice required by this section was not given to the Carriers. But "loss" in section 10 has been, used in the same sense as in section 3, I have already held that this expression does not refer to cases of wrongful deliveries or to such acts as would amount to criminal acts. It has been found that delivery of the consignments in question to Sheikh Abdul Ghani was not only wrongful, but constituted a criminal act. The condition of six months notice, therefore, would not apply to the present case. Moreover, it has been proved by the plaintiff that he learnt of wrongful deliveries to Abdul Ghani only by Exh. 10/22, written by the defendant No. 2 on 30‑1‑1963, informing the plaintiff that the goods had been delivered to Abdul Ghani. Notice to the defendants, Exh. 11/12, was given on 7‑5‑1963 and this notice is within the six months period prescribed by section 10, and, accordingly, the condition as to notice has been complied‑with by the plaintiff: Therefore, even if notice under section 10 was necessary in this case, this notice was given by Exh.11/12.

20. Under the second part of this issue, the contention of the defendants is that the plaintiff by his own conduct, is precluded from bringing this suit to claim damages from the defendants. The argument, so far as I have been able to under stand the learned Advocates for the defendants, is that the contents of Exhs. 23 to 33, which are the plaintiff's letters written between 29‑5‑1962 to 25‑12‑1962 show that the plaintiff was aware that Abdul Ghani had obtained deliveries of the goods without presentation of documents, but did not make any protest to the defendants: A reference to lifting of goods by Abdul Ghani is made only in two of these documents, that is, Exhs. 24 and

25. But this reference does not amount to any admission by the plaintiff that he had knowledge that any goods had been delivered to Abdul Ghani without documents relating thereto being presented to the carriers. Even if there is any such admission, the goods referred to in these documents are not the goods with regard to which the present suit has been brought. The reference in these two documents is to goods the value of which, as explained by the plaintiff in his evidence, had been paid. by Sheikh Abdul Ghani. Mr. Abdul Hafeez Pirzada, next referred, to the evidence of the four defence witnesses, namely, Sheikh Abdul Ghani, Muhammad Jamil, Mahmoodul Hassan and Abdur, Rehman that the sale proceeds of the goods delivered to Sheikh Abdul Ghani had been paid by the latter to the plaintiff's son, Muhammad Shafiq. It was urged that an adverse inference should: be drawn from the plaintiff's failure to examine Muhammad Shafiq and that under section 114 of the Evidence Act, the correctness of the defence witness's statement regarding payment of sale proceeds to Abdul Ghani should be presumed. To me,, this argument appears to be unreasonable. The case of sale proceeds having been paid to Abdul Ghani was not set up in the written statement of the defendants. Nor was this case put up to the plaintiff in the course of his cross‑examination by the defendants. This case was; for the first time, introduced by the defendants in their deposition in Court after the plaintiff had already closed his evidence. I, therefore, decline to draw any inference against the plaintiff from his omission to examine Muhammad Shafiq as his witness in Court. Further, the whole argument of estoppel by conduct advanced on the defendants' behalf is misconceived. The defendants did not put up any plea in their written statement that the defendants were led to making deliveries to Sheikh Abdul Ghani without presentation of documents of title to goods by any act (except writing of Exh. 13) or omission of the plaintiff. The defendants' case, in substance, is that they were instructed by the plaintiff in writing to deliver the consignments in question to Sheikh Abdul Ghani without requiring him to present the documents relating thereto. It was not pleaded that such deliveries were given by the defendants by reason of the plaintiff's failure to protest against similar earlier deliveries. I would, therefore, say that the defendants have not established any case of estoppel by conduct against the plaintiff. Issue No. 7 is, therefore, decided against the defendants.

21. Issue No. 6.‑It was sought to argue that the defendants were bailees and would not be liable for the plaintiff's claim unless his case was 'brought within sections 148, 151 and 152 of the Contract Act. But this argument cannot be accepted in view of the well‑settled legal position on this point. It was held by the Judicial Committee of the Privy Council in The Irrawaddy Flotilla Company v. Bugwandas (ILR18Cal.620), that the common carriers' liability does not originate in contract, but from exercise by him of a public employment for reward and this liability was as an insurer of goods. According to their Lordships, Dallas, C. J. correctly laid down the law, which law, it was held, is embodied in the Carriers Act, 1865, on the subject in Hretherton v: Wood (3B&B62) when he observed that breach of a common carrier's duty "is a breach of the law, And for this breach an action lies founded on the common law, which action wants not the aid .of a. contract to support it." A somewhat similar view of the common carriers liability was taken in a decision of the Dacca High Court in India General Navigation and Railway Co. v. Baroda Kanta Dey (P L D 1954 Dacca 84), where it was held that in this country a common carrier is subject to two distinct kinds of liability, the one for loss of or damage to the goods delivered to him for which he is liable as an insurer, and the other for loss for which he is responsible under the obligation to carry the goods properly and safely.

22. The two defendants admittedly delivered the consign ments in suit to Sheikh Abdul Ghani voluntarily and with full knowledge that such delivery was against the terms of the entrustment as incorporated in the truck receipts. This was wrongful delivery, and amounts to a criminal act. The defen dants cannot escape liability to indemnify the plaintiff for the loss caused to him by wrongful deliveries of the consignment of yarn to Sheikh Abdul Ghani.

23. Issue No. 8.‑In view of the 4,Qdings under Issues Nos. 1 to 7, the plaintiff will have a decree for Rs. 1,01,890‑88 (Rupees one lakh one thousand eight hundred ninety and eighty‑eight paisas), with interest at six per cent. per annum from the date of the suit until payment and with costs of the suit. A. H. Suit decreed.