1987 PLP 1435 (CLC)

4. These pleadings led to the framing of the following issues:‑

(1) Whether the defendants have misappropriated the goods pledged by them with the plaintiff? (2) If issue No.l be not proved, whether the defendants are liable to pay the suit amount to the plaintiff? (3) Whether the goods were insured? If so whether the plaintiff cannot sue before settlement with the insurance company? (4) Whether the plaintiff is entitled to any interest? (5) Relief.

5. Issues Nos.l and 2 were decided against the plaintiff, issue No.3 was decided against the defendants. In view of the finding on issue No.2 it was held that issue No.4 did not arise. As a result of these findings, the suit was dismissed on 31‑10‑1960. These findings as stated above were maintained by the learned Additional District Judge. The learned Additional District Judge held that neither the appellant's employees nor the defendants had misappropriated the pledged goods. Since the case registered by the police had been cancelled, he came to the conclusion that the appellant had not been able to show how the cottonseeds had been lost. The learned trial Court acting under sections 151 and 172 of the Contract Act invalidated condition No.8 of the document of pledge which provides that "during the continuance of this agreement the borrowers shall be responsible for all loss, damage, or deterioration of the security caused by theft, fire, rain or any other cause whatsoever". He found that this condition being inconsistent with the statutory provisions of section 151 was not valid and as such the appellant could not rely upon it. The learned Additional District Judge on the other hand agreed with the submission .made on behalf of the appellant that there were authorities in support of the appellant that clause 8 of the pledge deed Exh.P.10 was not invalid but he held that even then it was necessary for the appellant to prove theft and to account for the goods.

6. The learned Additional District Judge on the one hand held that none of the parties was responsible for misappropriation of the goods and on the other hand disbelieved the story of the goods having been stolen merely on the basis of the cancellation of the F.I.R. I do not see how if the property was not misappropriated by either of the parties its disappearance could be explained except on the theory of its theft. The finding that there was no theft also cannot be sustained. Then the finding that the property was not misappropriated by the respondents cannot be deemed to be a finding of fact. In order to prove this the appellant had produced P.W.2 who was the Chaukidar. He stated that his access to the godown was barred on 29‑10‑1952. According to him the person who was responsible for barring this access was Masoodul Hasan Manager Raza & Co. His evidence appears to have been considered irrelevant for the reason that there is no mention that the stock has been removed by the respondents. The other witness is P.W.7 who was the allottee of the factory where the goods were stored since 1951. He deposed that the godown was taken on rent by the respondents for storing the goods and they had been removing the same off and on. He stated that he was witness of the removal of the goods by the respondents. This witness is absolutely independent. Even the learned counsel for the respondents had to admit that there is nothing against him to attack his independence. The evidence of this witness has been disbelieved only on the ground that it was belied by F.I.R. lodged by the appellant at the time when the stock in question was already stolen. The F.I.R. is repetition of the statement of P.W.2 that his entry to the portion in which the godown was situated was barred. I do not see how this document contradicts P. W.7. The finding is clearly based upon misreading of the record.

7. I agree with the learned counsel for the respondent that a finding of fact arrived at by the appellate Court is sacrosanct for the purpose of this second appeal but in this case the finding has been arrived at by ignoring the fact that if there was no misappropriation by either party, the theft would be established and by misreading of the record as stated above. In these circumstances the finding of the learned Additional District Judge on issue No.l can neither be considered to be sacrosanct nor can be maintained. Mir Hasan Raza P.W.7 being an independent witness and there being nothing in his cross‑examination to condemn his evidence as untruthful, the learned Additional District Judge should have believed him and should have set aside the finding of the learned trial Court on issue No.l. A clear case of misappropriation of the goods by the defendants is made out.

8. Faced with this situation the learned counsel for the respondents gave a hint that the goods removed by the respondents may be some other goods but this is not believable since it is clear from the evidence of D.W.1 that Barrack No.4 was in possession of the respondent for being used as a godown and when the cottonseeds was purchased by the respondent they shifted it from Barrack No.3 to Barrack No.4. After 4 or 5 days of this shifting the Bank put up its lock. Clearly, therefore, in Barrack No.4 only the goods pledged had been kept and the evidence of P.W.7 relates to these goods only.

9. There is another clear circumstances, which goes against the respondent. The pledged goods must be more valuable and it is clear that its value was about Rs.16,

000. There is no contest on this point. In spite of this the respondents neither filed their own suit for recovery of the balance nor pleaded a set off in the written statement. If the goods had been lost in the manner suggested by them and if they had not themselves removed the goods, they would certainly have taken recourse to the two manners of the recovery of the balance amount. In view of these factors the suit of the bank should have been decreed.

10. Even if it is assumed that the property in dispute was not misappropriated by either party but was stolen either by Masoodul Hasan or some other member or employee of Raza & Co., the respondents are liable to make payment in view of condition 8 referred to earlier. It is clear that section 151 of the Contract Act provides that in all cases of bailment the bailee is bound to take as such care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed".

11. Condition No.8 as stated above makes the respondents responsible for all loss damage or deterioration of the security caused by theft, fire, or any other cause whatsoever. There is no discrepancy between section 151 and the said condition, rather both of them can stand together. If both of them are read together, it will lead to the dictum that if loss has been caused by theft, fire, rain or any other case, it would be the duty of the bailee to explain that he has taken care of the goods as a man of ordinary prudence would under similar circumstances take care of his own goods. If In spite of this the goods are lost in the manner as recorded in condition No.8 the liability of the respondents cannot be legally or equitably denied.

12. Now in the present case the godown was taken on rent by the respondents themselves. The relationship of landlord and tenant was between Raza & Co. and the respondents. Initially they stocked their goods in Barrack No.3, then they took them to Barrack No.4. The only thing that was done by the appellant to show some seizin was to put its own lock and to appoint a Chaukidar to look after. I have already commented upon the statement of the Chaukidar from which it is proved that he has been taking all precautions but on one particular day his entry was barred. In these circumstances it cannot be said that the appellant had not taken care which any person of ordinary prudence would take of its own goods. In case of theft also the respondents are liable.

13. It was stated by the learned counsel for respondents that the amount in dispute had been recovered under Martial Law Order 241 from the respondents and a Writ Petition 291 of 1971 has been filed against that recovery. It appears that a sum of Rs.11,000 and odd only has been so recovered. This question is not material for the decision of this appeal. If there is any execution in excess of the amount due to the appellant under this decree an objection can be taken by the respondents to the execution to that extent.

14. I, therefore, allow this appeal with costs throughout, set aside the judgments and decrees of the learned Courts below and decree the suit of the plaintiff‑appellant. M. B. A./L‑7/L??????????????????????????????????????????????????????????? ??????????? Appeal allowed.