1988 PLP 1381 (CLC)

5. It may be noted that the facts of both the suits are not disputed. Admittedly the goods of the plaintiffs in both the suits were stored in the warehouse of defendant No.l. Admittedly fire broke out in the warehouse of the defendant NO‑1 in which the goods in question were destroyed. Admittedly the bonded warehouse of the defendant No.l and the goods stored therein were insured with the defendant No.2 under five policies of total value of Rs.1,50,00,

000. According to defendant No.l goods of both the plaintiffs were covered under Policy No. Z‑FP‑2078/81 which is in the sum of Rs.50,00,

000. This policy also covered the goods of other importers also.

6. It is contended by the defendant No.l that the fire that broke out, was accidental and was not due to any negligence on his part. and therefore, he is absolved of the liability under sections‑116 of the Customs Act. Defendant No.1 further pleads that he has filed suit for the recovery of damages caused to the warehouse and goods stored therein from defendant No.2 under the insurance policies and on receipt of the claim from defendant No.2 he would re‑imburse the plaintiffs in respect cf damages suffered by them. Admittedly such suit is pending between the defendants Nos. 1 and 2.

7. Section 116 of the Customs Act, 1969 relied upon by the defendant No.l deals with the responsibility of the ware-housekeeper. It reads as under:‑ "The warehouse keeper in respect of goods lodged in a public warehouse, and the licensee in respect c f goods lodged in a private warehouse, shall be responsible for their due receipt therein and delivery therefrom, and their safe custody while deposited therein, according to the quantity, weight or gauge reported by the officer of customs who has assessed such goods, allowance being made, if necessary, for deficiency in quantity on account of natural loss ,as provided in section 110: Provided that no owner of goods shall be entitled to claim from the appropriate officer or from any keeper of a public warehouse, compensation for any loss or damage occurring to such goods while they are being passed into or out of such warehouse, or while they remain therein, unless it be proved that such loss or damage was occasioned by the wilful act or neglect of the warehouse keeper or of an officer of Customs."

8. It is contended by the learned counsel for the defendant No.1, that there is no proof adduced by the plaintiffs, that the loss or damages were caused to them _by any wilful act or negligence on the part of defendant No.l. It is contended, that the plaintiff's witness in Suit No. 781 of 1981 has admitted, that the loss was caused due to accidental fire and as such defendant No.l is protected under section 116 and the plaintiffs are not entitled to claim any compensation from the defendant No.l. For the reasons that I will discuss later the relationship between the parties was that c f bailor and bailee as defined under section 148 of the Contract Act. Plaintiffs who delivered their goods to the defendant No.l were bailors and defendant No.l was bailee,

9. Apart from the proviso to section 116 of the Customs Act, Mr. Mamoon Hassan learned counsel for the defendant No.l has also relied upon Halsbury's Laws of England, 4th Edition Volume 2 at page 716 para. 1544, wherein it is observed 'apart from special contract or negligence, a custodian is not responsible to the owner of the chattel entrusted to him in case of its destruction by fire, but if he insures it, he has such an insurable interest in it that, as against the insurers, he is entitled to recover full value."

10. No doubt the burden of proof was upon the plaintiff to prove that there was neglect on the part of defendant No.l which caused damage to goods of plaintiffs but in this context the provisions of section 151 of the Contract Act are also very relevant. As pointed above the defendant No.l was acting as bailee of goods of the plaintiff. Section 151 of the Contract Act subjects a bailee to the duty of taking as much care of the goods entrusted to them as prudent man would take of his own goods similar in quality and bulk. The fact that the bailee discharged his statutory duty in respect of goods entrusted to him, can obviously be proved by the bailee and not by bailor. The onus, therefore, to prove that proper steps had been taken by the bailee for the discharge of duty imposed upon him by law would initially lie on him and not on the bailor. It is only after A the bailee has discharged his onus < f proof, that the bailor would have to prove the negligence on the part of the bailee. In the instant case the bailee viz. the defendant No.l has led no evidence to show as to what steps he had taken to protect the goods from fire or to meet such an exigency. Mere admission of the plaintiff's witness in the cross‑examination that the fire was accidental would not relieve the defendant No.l from proving that he had performed statutory duty imposed upon him under section 151 of the Contract Act. Further more, it may be significant to note that the plaintiffs witness admittedly was not witness of the incident of fire, but learnt it from newspapers.. As such question to be considered is whether in absence of proof that the defendant No.l had discharged his statutory duties cast upon him by section 151 of the Contract Act, he can seek protection, of the proviso to section 116 of the Customs Act, 1969.

11. Reference may also be made to section 106 of the Contract Act', corresponding to Article 122 of Qanun‑e‑Sha4adat which reads as ,B under: ‑ "

122. When any fact is especially within the knowledge of any person the burden of proving that fact is upon him." Even under section 116 of the customs Act, the warehouse keeper shall be responsible for the safe custody of the goods lodgpd to hi warehouse. In other words he has to ensure the safety of the goods, The question to be considered is as to whether in case of loss, the duty is first cast upon the warehouse keeper to prove, that he duly discharged his responsibility 'of enquiring the safety of the goods an then burden shifted upon too owner of the goods to prove the negligence of warehouse keeper or the burden is solely placed on the owner of the goods to prove the negligence. In my opinion, the firs proposition appears to be proper and equitable. The goods war admittedly in the custody and care of the defendant No.l. The plaintiff had no control over this wharehouse. They only came to know about fire from the newspapers. It would be defendant No.l alone who can know as to what measures he had taken to ensure the safety of the goods, how the fire broke out, what was its cause and what efforts ware taken to extinguish the fire and to minimise the loss. In such circumstances, I am of the opinion, that the principle of res ips lequitur is applicable which has been explained by Solmond in hi work on Torts at page 451 (Edn. XIII) as follows:‑ "The rule that it is for the plaintiff to prove negligence, anti not for the defendant to disprove it, is in some cases one of considerable hardship to the plaintiff because it may be that the true cause of the accident lies solely within the knowledge of the defendant who caused it. The plaintiff can prove the accident, but he cannot prove how it happened so as to show its origin in the negligence of the defendant. The hardship is avoided to a considerable extent by the principle of res ipsa lequitur. There are many cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. He is then entitled to have the case submitted to the jury, and it is for the defendant, if he can persuade the jury that the accident arose through no negligence of his. The maxim res ipsa lequitur applies whenever it is so improbable that such an accident would have happened without the negligence of the defendant that a responsible jury could find without further evidence that it was so caused." Clerk and Lindsel have explained the doctrine in their book on Torts (Edn.XI), at page 399 as follows:‑ "If the result, in the circumstances in which he proves it, makes it more probable than not that it was caused by the negligence of the defendant the doctrine res ipsa lequitur is said to apply, and the plaintiff will be entitled to succeed unless the defendant by evidence rebuts that probability. The doctrine applies (1) when the occurrence suggests as a matter of reasonable inference, that it was the result of the negligence of the defendant or of someone for whose acts or omissions he is responsible, (2) the cause of the occurrence is unknown and (3) the presumption of negligence raised by the occurrence is not rebutted by any explanation based on additional facts proved."

12. Next I proceed to examine the legal plea raised by the defendant No.2. The doctrine of privity of contract may be stated, as follows:‑ "A contract cannot (as a general rule) confer rights or impose obligations arising under it on any person except party to it." In certain cases, however, third parties are entitled to sue in their own right. The learned counsel for the plaintiffs has relied upon the case of Nawab Khawaja Muhammad Khan v. Nawab Hussaini Begum reported in 152 Indian Appeal

156. In the case of Nawab Khawaja Muhammad Khan v. Nawab Hussaini Begum, an agreement was executed by appellant with the respondent's father to pay Rs.50 p.m. Khurchi Pandan to the respondent for consideration of her marriage with his son. The suit was filed by the respondent for enforcement of agreement which was resisted on the ground that she was not party to this agreement, and therefore, could not enforce it. However, Privy Council held, that she was beneficially entitled under the agreement and therefore, was entitled to proceed in equity to enforce her claim. In a case reported in A I R 1942 Cal. 251 it is held, that there are two exceptions to the general rule that a stranger to contract which reserves a benefit for him cannot sue upon it. The first exception is where the contract between the parties is so framed as to make one of them as trustee for other. In such case latter may sue to enforce the trust in his favour and no objection can be taken to his being stranger to the contract. The other exception covers those cases where promisor, between whom and the stranger, no privity exists, by his conduct and by acknowledgment or otherwise, constitutes himself as agent of the third party. It was held, that in the case coming in the first exception, the third party is allowed to sue entirely on the footing that the instrument created a trust in their favour. Similar view was taken in A I R 1973 Cal. 401 wherein it was held, that though the common law principle is generally applicable in India with the effect that only the party to the contract is entitled enforce the same, but where an obligation in equity amounting to trust arising out of contract exists, the beneficiary has a right to sue.

13. Admittedly, in pursuance of the circular of the Custom Department the defendant No.l took these policies of comprehensive insurance with the defendant No.2, protecting all the goods lying in his godown as well as in open compound against the damage by fire. He paid the entire premium in the first instance to defendant No.2, but subsequently charged share of this premium from the plaintiffs to the extent of value of their goods stored with defendant No.l. It is contended that while entering into contract of insurance with defendant No.2 defendant No.l was impliedly acting as agent of the persons whose goods were stored or were to be stored in the warehouse including those of the plaintiffs, as contemplated under sections 186 and 187 of Contract Act. It is settled law that relationship of principal and agent need‑ not be expressly constituted but can be brought about by implication of law on a particular situation arising or from the necessity of the case. It is submitted that this implied authority can further be inferred from the fact that the plaintiffs actually paid or agreed to pay the premium towards this insurance to the extent of the value of their goods. If the defendant No.l is held to be agent of plaintiff while entering into contract of insurance with the defendant No.2, then under the provisions of section 226 of the Contract Act, such contract can be enforced by the plaintiff as if the contract of insurance had been entered into by the plaintiff into person. It is further submitted, that the law would not contemplate that any wrong can be left without any legal remedy. If the plea o defendant No.l is accepted that he is not liable to make good the loss to the plaintiff by virtue of the proviso to section 116 of the Customs Act, 1969, and also the plea of defendant No.2 that they, are not liable because, there is no privity of contract between them and the plaintiffs then the plaintiffs would be left without any legal remedy.

14. To determine the question whether the plaintiffs have a right to sue the defendant No.2, it is necessary to determine as to what was relationship between the defendant No. l and the plaintiffs. Whether the defendant acted as agent, bailee or trustee in respect of the goods of the plaintiffs. Word 'agent' has been defined in section 182i of the Contract Act to mean 'a person employed to do any act fort another or to represent another in dealings with third person'. In the instant case the plaintiffs admittedly stored goods in the warehouse of the defendant till they cleared the same from the Customs. It is not alleged that the plaintiffs had employed defendant No.l to do any act or represent them in dealing with third person. The insurance was taken by the defendant No.l in pursuance of circular of the Customs Department and not under instructions from the plaintiffs. They simply charged the premium from the plaintiffs as consideration for keeping the goods in the insured warehouse. They cannot be, said to be acting as agent of the plaintiffs. Word 'Bailment' has been defined in section 148 of the Contract Act to mean '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'..I The person to whom they are delivered is called the 'bailee'.

15. As pointed above the goods were delivered to defendant No. 1 to be kept in the bonded warehouse till the same were cleared from the Customs Department, whereafter they were to be returned to the plaintiffs under their directions. It is not disputed that the defendant No.l was acting as bailee of the goods of the plaintiffs.

16. Word 'trust' is defined in section 3 of the Specific Relief Act, to mean 'trust includes every species of express, implied, or constructive fiduciary ownership'. Word 'trustee' is defined 'to include every person holding expressly, by implication, or constructively a fiduciary character'. A 'trust' is thus 'an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner'. A trustee is in fact the one in whom the trust property is absolutely vested. As a general rule a transfer of ownership of trust property to the trustee is one of the conditions necessary for a valid trust. Applying this principle it cannot be said that the defendant No.l are acting as trustee, as ownership of the property was not impliedly or expressly transferred to them. The 'trustee' as pointed above acquires the transfer of right of ownership which was not transferred in the instant case. The defendant No.l, therefore, cannot be considered as 'trustee' within, the definition of the 'trustee' under the Specific Relief Act. In Chitty on Contracts at para. No.560 the learned author has observed "it is usual for bailees such as wharfingers to insure their own goods and goods in trust or on commission and such an insurance covers both their own interest a lien for wharehouse rent for instance and interest of the owners of goods. They are entitled, therefore, as against the insurers to recover the entire value of goods, whether the owners have assented to the assurance or not. 'In trust' in this context means goods with which the assurer was entrusted not the goods held in trust in the technical sense of as 'trustees'. A bailee is not technically a trustee of such goods for the owner but he will be trustee of any insurance money which he received under such policy in excess of his own interest". The contract of insurance in fact is a contract of indemnity whereby the insurer undertakes to indemnify the assured in the manner and to the extent thereby agreed against lasses. In, the instant case admittedly the maximum assured amount which the insurers H are liable to indemnify defendant No.l under all the ` policies is Rs.1,50,00,

000. Admittedly the defendant No.l has filed ‑g suit for the recovery of losses suffered by him and other owner of goods under the insurance policy against the defendant No.2. As pointed above, the defendant No.l would be trustee to the extent of the amount of insurance received by him from defendant No.2 in excess of his own interest. If each of owners of the goods was to file suit separately against the insurer and recover the losses suffered by them individually from the insurer, the possibility that those losses may cover the entire amount of insurance policies, cannot be ruled out and in such case the assured cannot recover. the losses which are suffered by him. It may be worthwhile to reproduce the circular of the Customs Department under which the goods lying in the bonded warehouse are to be insured. It has been produced as Exh.10/1 in Suit No. 32 of 1982 as Annexure 'B' to the plaint in the other suit. This Circular is No.2 of 1979, dated 22‑1‑1979 and reads as under:‑ "All the Bonders holding public/private Bonded warehouses are advised to furnish a comprehensive Insurance Cover for the goods lying in their warehouses. This should include protection against .fire, theft, pilferage and damage due to floods and pledged with the Collector of Customs, Appraising. The Insurance Policy should be for C&F value of the goods warehoused including element of Customs duty and other taxes and should be deposited in the Bond section of this Customs House within thirty days from the date of issue of this Circular. Failure to do so within the specified period will result in the cancellation of their licences without any further notice." On reading of this circular, it would be clear that the goods of each Importer as and when stored in the bonded warehouse, had to be insured. Instead, the defendant No. l took five Insurance Policies, as pointed above of a general nature without naming the parties whose goods were insured. Defendant No.2 has denied that the goods of the plaintiffs were insured with them by the defendant No.l and the defendant No.l has produced no evidence to show as to how and under whet policy these goods were insured with the defendant No.2. In Suit No. 32 of 1982 the insurance policy has been produced as Exh.8 which shows, that it was taken out on 12‑1‑1982 and was valid from 1‑1‑1981 to 1‑1‑1982. The evidence of P.W. Noor Muhammad shows that he imported goods in question on 10‑2‑1981. This policy of insurance was, therefore, taken out by the defendant No,l even before the goods of the plaintiffs in Suit No. 32 cf 1982 were imported and, therefore, it cannot be said that they had taken out policy as agents of the plaintiffs. Similarly the policy produced in Suit No.7 of 1981 as Exh.ll/3 is also dated 12‑1‑1981, whereas according to P.W. Abdul Rasheed they had imported the goods in May, 1981. Objection is raised that the plaintiff in Suit No. 32 of 1982, being a limited Company, the suit was not computer to unless the person, who had signed the plaint was so authorised by resolution passed by the Company's Board of Directors. Reliance is placed on the case of Khan Iftekhar Hussain Khan v. Ghulam Nabi Corporation Ltd. Lahore P L D 1971 SC

550. In the reported case objection was raised in the pleadings, that the suit had not been validly instituted by an authorised person. Issue was framed by the trial Court as to 'whether the person who had filed the suit was authorised by the plaintiffs to institute the suit on their behalf?' Certain evidence on this issue was led in the trial Court and the learned Appellate Court also allowed the parties to lead additional evidence. Their Lordships of Hon'ble Supreme Court, while assessing the evidence on this issue, came to the conclusion, that due notice of meeting was not given to the deceased appellant, and therefore, the resolution passed in meeting cannot be said to valid one and, therefore, no valid authority was conferred on Mr. Khursheed Muhammad and he was not competent to institute a suit." It may be pointed that the present suit has been instituted in the name of the Limited Company viz. Transpak Corporation Ltd. through its Manager Mr. Noor Muhammad, who has signed and verified the plaint and has also examined himself. Thus, the compliance of Order 29, Rule 1, C.P.C. has been made in the instant case. From the body of the plaint it appears, that the plaintiff is a private Limited Company. While verifying the plaint, Mr. Noor Muhammad has shown himself to be partner of the plaintiff Company. The defendant in their pleadings have not raised the plea that suit has been filed by some unauthorised person. Neither any issue to this effect was framed nor such question was put or suggested to Noor Muhammad. In order to determine whether the suit has been filed by a person competent to do so, a reference has to be made to the Articles of Association of the Company. As no specific issue was framed. none of the parties have led evidence or the question whether the plaint has been. instituted by an authorised person or not, and, therefore. Articles of Association have not been produced. The plaintiff is a private Limited Company and the person, who has signed and verified the plaint, is not only Manager of the Company but is also its partner. The suit has been duly admitted by the Court and no objection has been raised by the parties in the pleadings or when said Noor Muhammad was in the witness‑box. The noting on the plaint shows, that the office had called upon the plaintiff to produce the power of attorney or a copy of the resolution of the Company in favour of the Manager Noor Muhammad. The note dated 27‑1‑1982 shows that the above objection was complied with and thereafter suit was admitted. Under the circumstances it cannot be said at this stage that the suit has been filed by an unauthorised person, therefore, this objection cannot be sustained at this stage. It may also be pointed that the defendants have even now neither prayed for framing of additional issues nor have they applied for permission to lead additional evidence on the question that Noor Muhammad was not authorised to file suit. Similar question arose in the case of Habib Bank Ltd. v. Green Garments and others P

1. D 1978 Kar. 1027. The learned Single Judge of this Court relying upon the case of Messrs Muhammad Siddiq Muhammad Umer v. Australasia Bank Ltd. P L D 1966 SC 684 came to the conclusion that for deciding this issue it was necessary to sec the Articles of the Association of the Company to find out whether the Directors were competent to delegate power to the attorney to institute the suit. (t may also be pointed that in both the aforementioned cases specific issues had been raised as to the authority of the person instituting the suit and evidence was lead by the parties. Considering the above factual and legal position, in my opinion neither there is privity of contract between the plaintiffs and the defendant No.2 nor defendant No. 1 took out the policies as agent or j trustee for the plaintiffs. My finding, therefore, on issue No.l is in negative as against defendant No.l and in affirmative as against defendant No.2 in both suits. Issue No.2. Issue No.2 as framed reads whether suit is barred under sections 21, 42, 54 and 56 of the Specific Relief Act? I have already held, that there was no privity of contract between the plaintiffs and the defendant No.2 and further that defendant No.l did not take out the insurance policies as agent or trustee of the plaintiffs. As such the plaintiffs cannot specifically enforce the contract of insurance against defendant No.2. The only question to be considered K in this issue is whether the suit is also barred under the said sections against the defendant N0.1 The suits are not merely for declaration but also for recovery of specific amount mentioned therein, which the plaintiffs claim to have suffered as losses due to destruction by fire of their goods kept in the godown of the defendant No.

1. The main argument of the learned counsel for the defendant No.l is, as the suit was not for money, but was for declaration, therefore, it was barred under the said provisions of the Specific Relief Act. The headings of both the suits show that suits are not only for declaration but also for recovery of specific amount mentioned therein. In prayer (b) in Suit No. 781 of 1981 and prayer (c) in Suit No.32 of 1982 the plaintiffs pray for decree of suit. As pointed above, the suits are also for recovery of specific amount of money. As such it cannot be said, that the suits are only for declaration and not for recovery of money. In fact the suits are for recovery of 1. specific amount as damages against the defendant. No.l and for declaration that the plaintiffs are entitled to recover the suits amount from defendant No.2 under the policies of the insurance taken out by the defendant No.l with defendant No.2 in respect of the goods of the plaintiffs. None of the defendants have denied the right of the plaintiffs with regard to the goods in question. Title of these goods is not in dispute. The question as to what amount the plaintiffs are entitled to recovery from defendant No.l affects pecuniary relationship between the plaintiffs and the defendant No.l. As such no declaration can be granted with respect to such relationship. Reference be made to A I R 1937 Lah.

25. Injunction is sought by the plaintiffs in the Suit No. 32 of 1982, wherein it is prayed in para. (b), that the defendant No.2 be restrained from paying insured amount of Rs.1,71,880 to defendant No.l. I have already held, that the suits are not maintainable against defendant No.2. As such no injunction can be issued against defendant No.2. Under section 21(a) of the Specific Relief Act a contract for the non‑performance of which compensation in money is an adequate relief, such contract cannot be specifically enforced. In view of the above discussions the suits are barred against M defendant No.2. Suits are also barred so far as specific performance of contract of insurance and declaration against defendant No.l is concerned, but are of barred against defendant No.l, in respect of claim of damages. My findings on this issue accordingly. Issues Nos 3 and

4. In both the suits, the plaintiffs claim total loss of their goods kept in the warehouse of the defendant No.l. This fact is not denied by defendant No.l nor there is any evidence to show that any goods were returned or given back to the plaintiffs. Admittedly, joint survey of the damage were held by the surveyors at the instance of defendants Nos. 1 and 2 to settle the claim of insurance between the defendants. However, none of the defendants has produced the survey report or examined the Surveyor to show extent or cause of the damage. As such, it can safely be assumed that entire goods of the plaintiffs in both the suits lying with the defendant No.l at the relevant time were totally damaged. In Suit No. 32 of 1982, Noor Muhammad, Manager of the partner of the plaintiff stated, that 23 bales of papers, belonging to the plaintiffs were destroyed by fire and they suffered loss of Rs.1,71,

818. The quantum of loss is not challenged in the cross‑examination of this witness. However, it is suggested to him, that they had obtained no objection certificate from the warehouse keeper viz. Defendant No .l before storing goods in the bonded warehouse, which suggestion he denied. He was also shown a document which was Annexure 'A' to the counter‑affidavit of the defendant No.l, but he has stated, that it is not signed by any representative of the plaintiffs. This document has been produced through Mr. Askari Abbas, who was examined by defendant No.l. This witness was working in the office of Messrs Haleem Brothers, who were clearing agent of the plaintiffs. He has produced the affidavit signed by him on 25‑12‑1978 as Exh.6/1. He has also produced enclosures alongwith this affidavit. Enclosure ('A' purports to be 'no objection certificate' issued by Ebrahim Enterprise viz. defendant No.l on the application of the plaintiffs. This in fact is an application addressed to the Customs Authorities signed by the defendant No.l. It reads, 'subject to your kind approval, we have the power of attorney or a copy of the resolution of the Company in favour of the Manager Noor Muhammad. The note dated 27‑1‑1.982 shows that the above objection was complied with and thereafter suit was admitted. Under the circumstances it cannot be said at this stage that the suit has been filed by an unauthorised person, therefore, this objection cannot be sustained at this stage. It may also be pointed that the defendants have even now neither prayed for framing of additional issues nor have they applied for permission to lead additional evidence on the question that Noor Muhammad was not authorised to file suit. Similar question arose in the case of Habib Bank Ltd. v. Green Garments and others P L D 1978 Kar. 1027. The learned Single Judge of this Court relying upon the case of Messrs Muhammad Siddiq Muhammad Umer v. Australasia Bank Ltd. P L D 1966 SC 684 came to the conclusion that for deciding this issue it was necessary to see the Articles of the Association of the Company to find out whether the Directors were competent to delegate power to the attorney to institute the suit. It may also be pointed that in both the aforementioned cases specific issues had been raised as to the authority of the person instituting the suit and evidence was lead by the parties. Considering the above factual and legal position, in my opinion neither there is privity of contract between the plaintiffs and the defendant No.2 nor defendant No. 1 took out the policies as agent or j trustee for the plaintiffs. My finding, therefore, on issue No.l is in negative as against defendant No.l and in affirmative as against defendant No.2 in both suits. Issue No.2. Issue No.2 as framed reads whether suit is barred under sections 21, 42, 54 and 56 of the Specific Relief Act? I have already held, that there was no privity of contract between the plaintiffs and the defendant No.2 and further that defendant No.1 did not take out the insurance policies as agent or trustee of the plaintiffs. AS such the plaintiffs cannot specifically enforce the contract of insurance against defendant No.2. The only question to be considered in this issue is whether the suit is also barred under the said sections against the defendant No.l. The suits are not merely for declaration but also for recovery of specific amount mentioned therein, which the plaintiffs claim to have suffered as losses due to destruction by fire of their goods kept in the godown of the defendant No.l. The main argument of the learned counsel for the defendant No.l is, as the suit was not for money, but was for declaration, therefore, it was barred under the said provisions of the Specific Relief Act. The headings of both the suits show that suits are not only for declaration but also for recovery of specific amount mentioned therein. In prayer (b) in Suit No. 781 of 1981 and prayer (c) in Suit No.32 of 1982 the plaintiffs pray for decree of suit. As pointed above, the suits are also for recovery of specific amount of money. As such it cannot be said, that the suits are only for declaration and not for recovery of money. In fact the suits are for recovery of specific amount as damages against the defendant No.l and for declaration that the plaintiffs are entitled to recover the suits amount from defendant No.2 under the policies of the insurance taken out by the defendant No.l with defendant No.2 in respect of the goods of the plaintiffs. None of the defendants have denied the right of the plaintiffs with regard to the goods in question. Title of these goods is not in dispute. The question as to what amount the plaintiffs are entitled to recovery from defendant No.l affects pecuniary relationship between the plaintiffs and the defendant No.l. As such no declaration can be granted with respect to such relationship. Reference be made to A I R 1937 Lah.

25. Injunction is sought by the plaintiffs in the Suit No. 32 of 1982, wherein it is prayed in para. (b), that the defendant No.2 be restrained from paying insured amount of Rs.1,71,880 to defendant No.l. I have already held, that the suits are not maintainable against defendant No.2. As such no injunction can be issued against defendant No.2. Under section 21(a) of the Specific Relief Act a contract for the non‑performance of which compensation in money is an adequate relief, such contract cannot be specifically enforced. In view of the above discussions the suits are barred against N defendant No.2. Suits are also barred so far as specific performance of contract of insurance and declaration against defendant No.l is concerned, but are of barred against defendant No.l, in respect of claim of damages. My findings on this issue accordingly. Issues Nos. 3 and 4 In both the suits, the plaintiffs claim total loss of their goods kept in the warehouse of the defendant No.l. This fact is not denied by defendant No.l nor there is any evidence to show that any goods were returned or given back to the plaintiffs. Admittedly, joint survey of the damage were held by the surveyors at the instance of defendants Nos. 1 and 2 to settle the claim of insurance between the defendants. However, none of the defendants has produced the survey report or examined the Surveyor to show extent or cause of the damage. As such, it can safely be assumed that entire goods of the plaintiffs in both the suits lying with the defendant No.l at the relevant time were totally damaged. In Suit No. 32 of 1982, Noor Muhammad, Manager of the partner of the plaintiff stated, that 23 bales of papers, belonging to the plaintiffs were destroyed by fire and they suffered loss of Rs.1,71,

818. The quantum of loss is not challenged in the cross‑examination of this witness. However, it is suggested to him, that they had obtained no objection certificate from the warehouse keeper viz. Defendant No.l before storing goods in the bonded warehouse, which suggestion he denied. He was also shown a document which was Annexure 'A' to the counter‑affidavit of the defendant No.l, but he has stated, that it is not signed by any representative of the plaintiffs. This document has been produced through Mr. Askari Abbas, who was examined by defendant No.l. This witness was working in the office of Messrs Haleem Brothers, who were clearing agent of the plaintiffs. He has produced the affidavit signed by him on 25‑12‑1978 as Exh.6/1. He has also produced enclosures alongwith this affidavit. Enclosure ('A' purports to be 'no objection certificate' issued by Ebrahim Enterprise viz. defendant No.l on the application of the plaintiffs. This in fact is an application addressed to the Customs Authorities signed by the defendant No.l. It reads, 'subject to your kind approval, we have no objection if the goods referred above, are stored in our public bonded warehouse No.21/79 at the importers risk and cost on our usual conditions.' One of the conditions of the storage shows 'that the goods shall be stored in the warehouse at the sole risk of owner of the goods and the warehouse keeper, shall not be responsible for any loss or damage." It purports to bear signature of representative of the owner in token of acceptance of terms of conditions. I have already pointed, that plaintiff's witness has denied that the document bears signature of any of their representative. Admittedly it does not bear the signature of Askari Abbas, who was examined by the defendants. No question was suggested to Mr. Askari Abbas, whether he identified the signature on this document in token of the acceptance. This document, cannot be said to have been properly proved so as to deprive the plaintiffs in Suit No.32 of 1982 from claiming recovery of the losses, on the basis of the conditions mentioned in this alleged 'no objection certificate'. In para. 6 of the plaint the plaintiffs have shown the value of the goods viz. 23 bales to be Rs.1,58,

328. This amount of Rs.1,71,818 which is now claimed by them also includes 10$ surcharge including rent, insurance charges etc. No evidence has been produced in respect of these extra charges of 10% by way of receipts etc. Therefore, plaintiffs in Suit No.32 of 1982 are entitled to recovery only Rs.1,58,328 from defendant No.l. In Suit No. 781 of 1982 the total value of all the three consignments of papers is claimed to be Rs.13,97,755 which were stored in the godown of the defendant No.l and which were destroyed by fire. In para 6 of the plaint, value of each consignment is mentioned. This value is shown to be the insured amount. According to para. 7 of the plaint, it includes 10% insurance premium charges, recoverable by defendant No.l from the plaintiffs alongwith storage charges etc. at the time of clearance of goods from the warehouse. As the goods were not cleared from the warehouse, and were destroyed by fire, the plaintiffs could not have paid this 10$. The total value of the goods claimed by the plaintiffs is Rs.13,90,584 and if 10$ is deducted from this amount, total C&F value would come to Rs.12, 51,

525. Admittedly 12 bales were not released by the Customs Department, the value of which comes to Rs.21,600, which would have to be excluded. Thus, the total loss suffered by the plaintiffs in the suit would come to Rs.12,30,

000. Considering all the facts discussed above, I decree the Suit No. 781 cf 1981 against the defendant No.l in the sum of Rs.12,30,000 and also decree Suit No. 32 of 1982 against defendant No.l in the N sum of Rs.1,58,

328. In view of the peculiar circumstances of the case, the plaintiffs in both the suits are not awarded any cost or interest. Both the suits are dismissed against defendant No.2 with no order as to cost. A.A. /M‑447/ K Order accordingly.