P L D 1970 Dacca 490 (PLP)

MAHMOOD HUSSAIN, J.‑--This appeal on behalf of the plaintiffs is directed against the judgment and decree passed by the learned Subordinate Judge in a suit for a declaration that the plaintiff has a prior lien over 4,000 bales of jute lying at godowns Nos. 3, 4 and 5 of the plaintiff and for a decree of Rs. 60,

000. The plaintiff is the sole proprietor of the firm carrying on business in jute at Narayanganj and he entered into a contract with defendant No. 1 for storing, packing and baling of jute for the period from 1‑7‑56 to 30‑6‑

57. That in terms of the contract the defendant No. 1 paid a sum of Rs. 30,000 as advance and agreed to pack 30,000 pucca bales of jute in the packing machineries of the plaintiff at the rate of Rs. 3‑12‑0 per bale and also store the said jute in the godown of the plaintiff. In terms of the contract the plaintiff was bound to supply labour for handling and forwarding purposes and it was further agreed that in case the number of pucca bales fall short of 30,000 the defendants shall pay at the rate of Rs. 1‑2‑0 for each unpacked pucca bale and it was further agreed that for each unpacked pucca bale the defendants shall pay a sum of Rs. 1‑10‑0 as packing charges. 1t was agreed between the parties that any time when the defendants stopped packing of further bales of jute the full amount due as per contract shall be forthwith payable. The plaintiff further stated that on or about 4th May 1957 the defend ants left Pakistan for India leaving no assets in Pakistan. The plaintiff made a calculation of his claim asserting that the defendants had packed 17,824 pucca bales and as such the sum of Rs. 66,840 became due to the plaintiff and for the remaining 12,176 unpacked pucca bales of jute out of 30,000 bales the plaintiff is entitled to a sum of Rs. 13,698 at the rate of Rs. 1‑12‑0 per bale and that the plaintiff is entitled to get a sum of Rs. 7,312‑8‑0 for having packed 4,500 kutcha bales of jute at the agreed rate of Rs. 1‑10‑

0. The plaintiff, therefore, making adjustment of the amount received in advance claimed a sum of Rs. 57,850 against the defendant and again he claimed Rs. 2,149‑8‑0 for the loss incurred in business due to non‑payment of the sum due against the defendant. It may be noted that the original plaint shows the claim after adjustment, of Rs. 57,850, but on calculation of items as pointed out earlier the claim is Rs. 57,850‑8‑

0. So the total claim made by the plaintiff is Rs. 60,000 against the defendant. It is further stated by the plaintiff that pro forma‑defendant No. 6 tried to remove the jute packed by the plaintiff and stored in his godown without playing plaintiff's just dues for packing, baling, storing and handling charges. The pro forma‑defendant claimed on the basis of the hypothecation made by defendant No. 1 in respect of the goods stored in the godowns Nos. 3, 4 and

5. The plaintiff made a plea of reimbursement of his claim in full from defendant as well as from pro forma‑defendant both under the ordinary law of contract and equity claiming a lien over the jute stored in the said godowns. The plaintiff accord ingly made a prayer for declaring a prior lien over the existing 4,000 bales of jute in godowns Nos. 3, 4 and 5 and for a decree of Rs. 60,

000. Defendants 1 to 5 have not entered appearance and it is only defendant No. 6 who resisted the claim of the plaintiff by filing a written statement. Defendant No. 6 asserted that defendant No. 1 on 2‑8‑1954 hypothecated by means of a written instrument and created a first charge on, inter alia, all its stocks of jute both present and future wherever situated in East Pakistan in his favour as security for payment of advance made to it. Defendant, therefore, relying on the said instrument claimed the first charge over defendant 1's stocks of Jute stored in the plaintiff's godown situated at Narayanganj. It was also stated by defendant that in terms of the said agreement all stocks of jute and other property, both present and future, were to be held by defendant No. 1 as this defendant's exclusive property specifically appropriated to the security created in the said agreement. In terms of the said hypothecation under the said instrument, dated 2‑8‑54 and on the occurrence of any circumstances which in the opinion of this defendant would endanger the said security, this defendant was entitled, inter alia, to take possession of the said jute and remove and/or sell or otherwise dispose of the same and this defendant accordingly on 30‑4‑57 took physical possession of the stocked jute in the godown of defendant at Narayanganj as it appeared to him that the security was en dangered by the conduct of the defendant No. I and that this defendant further apprehended that defendants 2 to 5 and other partners of defendant No. 1 had left Pakistan permanently with a view to defraud this defendant. This defendant denied that the plaintiff was entitled to any dues from this defendant and that in pursuance of the hypothecation this defendant was entitled to take all the jute free from encumbrances. This defendant further stated that the plaintiff was at no time in possession of the said jute or of the said godowns wherein the said jute was stocked. This defendant further stated that at the time when he took possession of the jute belonging to defendant No. 1 there was due from defendant No. 1 to the defendants, the sum of Rs. 13,51,209‑13‑8 pies and that there was due at the time of filing of written statement a sum of Rs. 7,29,914‑11‑11 pies. This claim has been brought in the written statement by way of amendment petition filed on 26th November 1958. The defendants challenged the amount claimed by the plaintiff contending that the defendant No. 1 made the payment to the plaintiff from time to time and that this defendant not being a party to the agree ment between the plaintiff and defendant No. 1, he cannot be fastened with the liabilities of the defendants 1 to

5. In such circumstances defendants prayed that the plaintiff's suit must be dismissed as against him. The learned Subordinate Judge after hearing the parties passed the following order:‑ "That the suit be decreed on contest in part against defendant No. 6 and ex parte against the rest. Plaintiff's prayer for decla ration of lien is refused. He is entitled to recover the amount claimed in the suit from defendants 1‑5 with costs." In this ordering portion it appears that a decree has been passed against defendant No. 6 in part although the last sentence in the ordering portion clearly shows that the plaintiff is entitled to recover the amount claimed in the suit from defendants I to

5. The ordering portion is a mistake when it said that the decree was passed in part against defendant No. 6 and this ought to have been corrected under section 152 of the Code of Civil Procedure. However, since the plaintiff appellant before us has not made out any case in this ground, we accept it as a mistake. Mr. A. M. Fazlul Wahhab, the learned Advocate appearing for the plaintiff‑appellant contended that the learned Subordinate Judge erred in law in holding that the plaintiff is not entitled to a lien as claimed by him and that the defendant No. 6 was in possession of the godowns in which the jute was stocked and lastly he relied on ground No. 15 taken in the memorandum of appeal which runs thus:‑ "

15. For that the Court below was wrong in holding that it is necessary for the purpose of establishing a lien to apportion the value of w irk done and the value of storing accommodation of the jute under the agreement Exh. 1." The basis of the claim made on behalf of the plaintiff is under the ordinary law of contract and equity by virtue of a lien for reimbursement in full before the defendants or the pro forma‑defendant can be entitled to remove the existing 4,000 bales of jute packed, handled and now stored in the plaintiff's press and godowns Nos. 3, 4 and

5. In order to examine this question we require to examine the original agreement entered into between the plaintiff and defendant No. 1 Exh. 1 date 30th June 1956. The terms and conditions of that agree ment do not show that defendant No. 1 kept the jute which he was to purchase for importing and doing other works subject to any control of the plaintiff: The relevant conditions are quoted below for proper appreciation of the case:‑ "(1) That the first party will supply the second party with godowns and accommodations viz: (a) Import Godown, (b) Kutcha and Pucca Assorting Godown, (c) Pucca bales Stock Godown, (d) Office accommodation with Kitchen on the Top Floor, (e) Jamadar Rooms with Gumti, (f) A hand‑driven Kutcha press. Kutcha Press Charges will be borne by the second party. (2) That for the above things the 2nd party will pack their jute in the pucca baling press of the first party. The number of bales must be 30,000 (thirty thousand) bales for the period from 1st July 1956 to 30th June 1957 and pay the first party @ Rs. 3‑12‑0 per bale. If the total number of bales became less than thirty thousand, the second party will pay the 1st party @ Rs. 1‑2‑0 (Rupees one and annas two only) per bale for the unpacked number of bales. (5) That the first party will bear the labour charges of importing assorted bojhas into the press House from assorting godowns and exporting pucca bales to Barge and/or Flats and Boat from Dunga and/or stocks upon the Contracted number of bales. (10) That the Second Party has paid on the 5th July 1956 a sum of Rs. 30,000 by a crossed cheque on the Hind Bank Ltd., Narayanganj as an advance which will be deducted from the monthly packing bills @ Rs. 2,500 per month provided the Bill becomes above Rs. 2,500." It will appear from the above conditions that the plaintiff took upon himself to supply go downs and accommodations as per clause I and he gave the liberty to defendant No. I to deal with the Jute stock in the godown in any manner lie likes and the plaintiff took upon himself to assist him in the form of labour charges of importing, assorting bojhas into the press House from assorting godown and exporting pucca bales to Bargea etc. and he also agreed to do all that were required for giving facilities to defendant No. 1 in connection with the business of defendant No.

1. In consideration of the condition No. 2, as quoted above, defendant No. 1 made an advance payment of R s. 30,000 giving liberty to the plaintiff to deduct from the monthly packing Bills a Rs. 2,500 per month provided the bill becomes above Rs. 2,

500. The plaintiff has not examined himself. P. W. I who was examined in this case is the Manager of the plaintiff. This witness stated that after packing, the jute was kept in the godown of the plaintiff and defendant No. 1 would keep the key having locked the door and he further stated that the plaintiff would keep watch over the godown and he cannot remove the goods without the permission of the plaintiff and that the plaintiff was not aware of the mortgage of the jute goods with defendant No. 6 and defendant No. 6 also did not inform the plaintiff about such mortgage. It is asserted by him that he did not receive any amount beyond Rs. 30,

000. This witness stated that defendant No. 6 put their Name Board in May 1957 after defendant No. I had left Pakistan. It is further stated that the Bank did not post Darwan in the Godown since 1954. This witness further stated "I do not know how the jute dealer procures capital for purchase of jute". Then says "I cannot say whether the Banks at Dacca and Narayanganj supply the jute dealers to purchase jute. We did not make any inquiry about the financial position of Indra Chand Jetmall when we had entered into agreement. I do not know if any bank advance money on hypothecation." This witness stated that there is a stipulation in the agreement to the effect that defendant No. 1 could not remove the jute without plaintiff's permission and stated that A. R. Bhuiya is the sole proprietor of the firm and that the plaint was drafted at the instruction of A. R. Bhuiya. He, however, stated that defendant No. 1 was not tenant and that the plaintiff did not receive Rs. 41,000 besides Rs. 30,

000. P. W. 2 who is the Bill Clerk of the plaintiff stated that A. R. Bhuiya is the sole proprietor of the firm and he further stated that after packing the jute "it could not be removed with out plaintiff's permission" and he also stated that the bank did not hang up its sign‑board on their godown and it did not post any Darwan and that Indra Chand (defendant No. 1) posted its Darwan at the godown. The contesting defendant No. 6 examined four witnesses. D. W. 1 was its Manager for the years June 1955 to June 1959. This witness stated that the defendant No. I entered into an agreement with the Bank and borrowed money against hypothe cation and signed agreement Exh. A and asserted that he took possession of the jute on 30‑4‑57 which was in possession of Indra Chand Jetmall defendant No. 1 and that the plaintiff was never in possession of the jute hypothecated to the Bank and he stated that the relationship of the plaintiff and the defendant No. 1 was that of landlord and tenant and that since August 1954 the Bank hung up its Name Board on the godown and put pad‑lock bearing Bank's name on the door of the godown and that the Bank posted a Darwan since August 1954 and he further stated that he took possession of the jute on 30‑4‑57 as they con sidered that the security was in danger as Indra Chand might leave Pakistan at any moment. He further stated about Bank's loan against hypothecation and stated that the sum of Rs. 13,51,205‑13‑8 pies was due on 30‑4‑57 and that a sum of Rs. 7,29,914‑11‑11 pies was due on 2‑1‑58 when the written state ment was filed and this amount is still due from defendant No. 1 and he asserted that payment was made to one Dinesh Chandra Roy, godown‑keeper posted by Bank at Indra Chand letmall's godown at plaintiff's premises at Tan Bazar and he further stated that when the Bank wanted to dispose of the jute, plaintiff obstructed and the Bank instituted a proceeding under section 144 of the Code of Criminal Procedure and as a counterblast the plaintiff instituted the present suit. It was further stated that owners of the godowns and press cannot keep the jute in their possession. He further stated that defendant No. 1 could remove jute from the godown with the permission of the plaintiff. In cross -examination this witness stated that Messrs Indra Chand had export business in jute and the Bank provided financial help to Indra Chand to buy jute and to export it after baling and pressing. He further stated that the Bank advanced Rs. 1,300,000 and odd to Indra Chand having regard to his limit and he stated that the plaintiff had press and that Indra Chand packed his jute at his press and that this Indra Chand hired godown of the plaintiff for keeping his jute. He stated that Bank kept godown‑keeper at very place of business wherever they had stock and that the defendant No. 1 could deal with the jute subject to Bank's supervision. Next witness is D. W. 2 who is a godown inspector of the Bank. ‑This witness stated that he used to inspect godowns and submit report and the reports have been proved as Exhs. G to G (3) and stated that he inspected the godown of defendant No. 1 and further stated that he found Bank's pad lock and Bank's Name Board on the godown and that Bank's godown‑keeper was posted there and that defendant No. 1 paid Rs. 43,163 to the plaintiff beside the sum of Rs. 30,000 as mentioned in the agreement Exh. 1 and that all these have been noted in his report. In his cross‑examination he said that he was in service of the Bank since, September 1953. Next witness is D. W.

3. He is a dealer in jute and Manager of Lonis Dracyfus and he stated that they were the sixth in the list of jute exporters and that he is a member of the Com mittee of the Association and he was in jute trade in 1951. He was at Dacca and Narayanganj since December 1953. This witness stated that Bank advances money to the dealer against hypothecation of jute. Banks post godown‑keepers and Darwans put their pad lock on the godown wherever hypothecated goods are kept and further stated that when jute goes to the press for baling and packing, the press owner becomes possessor of the jute and they may refuse delivery unless their dues be paid and that they lose their possessory right as soon as the packed jute is delivered and that the tenant then gets absolute possession and can dispose of the jute in any manner he likes and that pressing charges are paid after a week. In his cross‑examination he stated that the charges include rent and hand ling of jute for press to the godown and from godown to the press and the landlord supply labours for exporting jute and he visited the plaintiff's premises in 1952 for the first time and he further stated that after delivery of packed goods the owner of press has no right. "Non‑payment of press owner's dues has come to my notice because it is an accepted practice that the dealers take delivery of goods after payment of press owners dues." D. W. 4 asserted that he is a Bank Officer since 1951. He stated that Exh. A was signed before him by partners and he proved the reports submitted by Dinesh Chandra Roy marked Exhs. H to H(5) and he stated that he made inquiry about Dinesh Chandra Roy but could not trace him. This witness in cross- examination stated that he knows defendants 1 to 5 from 1951. From the evidence it can be said that Exh. A has been duly proved and from the terms of that Exh. A it will appear that defendant No. 1 entered into an agreement in 2nd August 1954 whereby he hypothecated to the above Bank the stocks of jute and made the claim of the bank as a first charge as security for the payment of the Bank's dues and from clause 4 of the agreement it will appear that the Borrower undertakes to maintain a sufficient quantity and market value of goods and property for the margin of security required by the Bank and will forthwith, whenever necessary, provide further goods to restore such margin or pay the Bank the equivalent in cash. And in clause 5 defendant No. 1 undertook to keep the goods and property at his risk and expenses in good condition. Under clause 7 it appears that all the goods and property and all sales realisations and insurance proceeds thereof and all documents under the security shall be held as Bank's exclusive property for appropriation towards the security and the Borrower will not create or suffer any mortgage charge lien or encumbrance affecting the same or any part thereof nor do anything that any prejudice the security. Under clause 10 the interest of the Bank has been properly secured. Clause 10 runs thus:‑ "

10. That nothing herein shall operate to prejudice the Bank's rights or remedies in respect of any present or future security, guarantee obligation or decree for any indebtedness or liability of the Borrower to the Bank." Under clause 11 defendant No. 1 further made a declaration to the following effect:‑ "

11. That it is declared that all present goods and property aforesaid are the absolute property of the Borrower at the sole disposal of the Borrower and fee from any prior charge or encumbrance and that all future goods and property hereunder shall be likewise the unencumbered disposable property of the Borrower." So, from the terms of Exh. A it is very clear that the Bank under the Hypothecation bond made itself absolute owner of the stocks of goods that would be kept in godown of the defendant No. 1 and defendant No. 1 also on his free will made the claim of the Bank as a first charge over the commodities in his stock. Now the claim of the plaintiff is based on Exh. 1 which was executed on 30th June 1956. From the evidence discussed earlier it will appear that the trade in jute is run by the commercial community on a distinct basis firm inasmuch as we find from the evidence of D. W. 3 that the Bank advances money to the jute dealers who deal with the business under proper licence from the Government and that advance of money made by the Bank is against hypothecation. This D. W. 3 is a member of the committee of Jute Association and he has been in jute trade since 1951. This credential part of the witness has not been challenged in cross‑examination. So, from his evidence we find that the Banks advance money against hypothecation and further the jute goes to the press owners for baling and packing and charges are realised by the press owners who makes payment of the pressing charges after a week and this aspect of the case is cor roborated when we look to the condition No. 10 in Exh. 1 where by the defendant No. 1 made an advance payment of Rs. 30,000 for deduction of the packing bills submitted by plaintiff. It is no doubt true that when packing is made, the press owners are entitled to the claim. But the system of the trade goes to show that such payments are made weekly and we find from the evidence of D. W. 3 that as soon as the goods are packed and taken out of the possession of the press owners and stocked in the godown, the press owners lose their temporary right of possession and full control goes back to the possessor of the godown, that is, defendant No. 1 and P. W. 1 admitted in his deposition that defendant No. 1 would keep the key having locked the godown. As we find from Exh. 1 and from the evidence of D. W. 3 and P. W. 1 that proper security of the packing charges have been made and plaintiff took due caution for enforcement of right for realisation of packing charges we do not find any reason to hold that plaintiff in the normal course of business transaction kept it open for realisation of his packing charges. On the other hand we find from the evidence discussed above that proper security was taken for packing charges and in that view of the matter it cannot be said that after the packing of the goods it had been stocked in the godown of defendant No. 1 subject to realisation of packing charges. The plaintiff pressed his claim on the principle of ordinary law of Contract and if the, present case is examined on that account it will appear that the plaintiff who is in the business from before did not examine himself in order to explain how the jute trade is being carried on by them and in the absence of his evidence, when we consider the evidence of D. W. 3 who is in jute trade from 1951, we find that the Banks advance money to the dealer in jute against hypothecation. This view expressed by D. W. 3 in the field of the jute trade which has not been challeng ed by the plaintiff in his cross‑examination. So, we are to accept his views in the field of the business of jute trade and we cannot introduce anything invoking the general principle of law of Contract in order to make out a different case as argued on behalf of the plaintiff‑appellant. The plaintiff with his eyes open entered into agreement with defendant No. I and nowhere we find that he put any restriction on the defendant No. 1 in the matter of dealing with the jute that was stocked in his godown for payment of his dues. And particularly it will appear from Exh. 1 that no reference to the rent that is to be required of the defendant No. 1 to pay for use and occupation of the godown was made. Clause 1 of the agreement Exh. 1 clearly shows that different kinds of godowns are to be supplied to the defendant No. 1 by the plaintiff and plaintiff took all responsibilities for carrying out all the works that were required by the defendant No. 1 to deal with its jute business and from the other clauses it will appear that the plaintiff wanted to make profit only by giving and lending its labour and making provision for use of its Baling press for making pucca bales and for the kutcha press he was to supply the hand‑driven kutcha press machine to defendant No. 1 and defendant No. 1 took upon himself to bear the charges himself. The plaintiff also made it clear that he would not restrict the defendant No. 1 from shipment of kutcha bales to India and local areas. We do not find any clause in respect of movement of the pucca bales save and except that under clause 5 of the agreement whereby if the defendant No. I wanted to import or export, then the plaintiff was to bear the labour charges. And this goes to show that the plaintiff had no control over the commodities and the full control was with the defendant No. 1 and the plaintiff was o carry out the works as and when required of him to do under the directions of defendant No.

1. From clause 7 of the agreement it would further appear that the plaintiff' himself gave preference to the packing of the bales of defendant No. 1 and he also took upon himself to bear all sorts of charges for repairing the godowns and for making other accommodations. It is no doubt true that in an ordinary course of business the plaintiff ought to have put some restrictions on the defendant No. 1 in the matter of dealing with commodities of jute stocked in his godown. Since the plaintiff did not put any restriction, it cannot be said that the plaintiff is entitled to invoke the principle of equity in the matter of realisation of any charges that may be due from defendant No. 1 for the jute stocked in the godown. From the very terms of the contract Exh. 1 it will appear that the use of the godown would come into play as and when jute is purchased by the defendant No. 1 and not before that and this is why the terms of the agreement have been so carefully drawn up and so it cannot be said that the agreement was executed in a wide term and that plaintiff would be entitled to a lien for the use and occupation of the godown on the footing that the hiring of the godown by the defendant No. 1 was dependent on the purchase of the goods. The only consideration in the agreement, it appears is for taking security for packing charges and others under clause 10 of the agreement Exh.

1. The defendant No. 1 made an advance payment of Rs. 30,

000. So, in the fitness of things the plaintiff had to see whether the money he received in advance from the defendant No. 1 for the expenses incurred in terms of the agreement entered into by him with defendant No. 1 is sufficient. In the absence of any such condition for putting restriction of the moving of goods from the godown taken possession by the. defendant No. 1 and in view of the agreement of defendant No. 1 with defendant No. 6 by virtue of which defendant No. 1 could trade in the jute business, it will be against the interest of the commercial com munity to hold that the Bank (defendant No. 6) will be bound to make payment of any dues that might be claimed against the Borrower. It will appear from Exh. G series that an Inspector of the Bank from time to time gave report to the Bank as to the stock of jute that had been stocked by defendant No. 1 and D. W. 2 the Godown‑Inspector of defendant No. 6 in his deposition stated that he inspected the godown of defendant No. 1 and submitted his report and it will further appear from Exh. H Series that the godown‑keeper of the defendant No. 6 gave report to the defendant No. 6 about the quantity of jute and the value thereof and it further appears from the said Exh. H series that certain statements were to be certified and from the details of the statement it will appear that this was to be signed by the Borrower himself. This statement goes to show the property mentioned in the statement were fully entitled to remain in pledge with the Bank to the full extent of the Bank's advances to them against it and that it is not subject to any lien, claim or any sort other than to "defendant No. 6" and that the jute has been fully insured and such statement required to be certified. This Exhibit goes to show that the Bank took all reasonable steps to see that their money that was going to be advanced to the Borrower is not made on any wrong statement. So, from the conduct of defendant No. 6 it will appear that they are all vigilant to protect their interest and it cannot be said from in the terms of Exh. A that the Bank gave any concession in any form to allow the borrower to get out from its clutches in the matter of giving priority to the first charge it was entitled to. So, for no fault of defendant No. 6, the liability of defendants 1 to 5, if any, can be thrust upon it invoking general principle of equity. Equity can only come to play as and when it is found that the party is subject to some hardship for no fault of his. In the present case the benefit, if any, that was derived was by defendant No. 1 that it took money from defendant No. 6 and with that amount it carries the trade in jute and if plaintiff has suffered any loss for any wrong done by defendants Nos. 1‑‑5 he should certainly get relief under the term, of the agreement. The learned Subordinate Judge considering this aspect of the case rightly decreed the plaintiff's suit as against defendants 1 to

5. Mr. S. M. Hussain, the learned Advocate appearing for the respondent contended that the appeal is incompetent since the plaintiff got a relief as prayed for by him, that is, a decree against defendants t to 5 but the whole crux of the case being that the plaintiff claimed prior lien over the jute that was in the godown of the plaintiff and as such the appeal is competent. Now if it is taken that it was a relationship between the landlord and tenant even in that case also the landlord cannot detain the commodities but he can only pursue the defendants Nos. 1‑5 for realisation of his dues. In the present case the relief, if any for the plaintiff is against defendants 1 to 5 but he cannot ask for relief against defendant No.

6. In the event of claim against defendant No. 6, he must prove that the contract entered into between him and defendant No. 1 has some cogent relationship with the subsequent contract between defendant No. 1 and the plaintiff: As earlier discussed, from the terms of agreement Exh. I it cannot be said that the parties had any reference to the earlier contract between defendant No. I and defendant No.

6. In order to prove possession of the godown, the plaintiff made out a case that they employed Darwan, but P. W. 2 stated that defendant No. 1 posted Darwan at their godown. Defendant No. 1 did not enter appearance and the contest is between plaintiff and defendant No.

6. The jute was stocked by defen dant No. 1 and the evidence led in support of the entries in the insured letter Exh. E series goes to show that the godown‑keeper had been paid. And from the evidence of D. W. 4 it will appear that Dinesh Chandra Roy was their godown‑keeper and this witness proved the report submitted by Dinesh Chandra Roy. D. W. 1, the Manager of defendant No. 6 stated that the register will show the payments made to Dinesh Chandra Roy and he also stated that the general instructions were issued to all godown‑keepers and that instructions will appear from Exh. F. From this Exh. F it will appear that the godown keeper was asked to submit report regularly showing the arrival of stocks in the godown and display of Bank's name‑boards and putting of padlock of the Banks on the godown and all these details go to prove that the stocks kept in the godown are the property of the Bank and the godown‑keeper has been kept to protect the Bank's interest. It further appears from the evidence of D. W. 1 that the Bank's sign‑board was there on the godown and godown‑keeper on behalf of the Bank also kept watch and supervised the jute stocked in the godown. From the evidence of P. Ws. it does not appear that any godown‑keeper was kept by them or by defendant No.

1. But it is the evidence of P. W. 2 that defendant No. 1 posted Darwan at their godown. As earlier discussed and as already held that defendants 1 to 5 made no statement as to the keeping of Darwan in the godown and the only assertion made by defendant No. 6 is that they kept Darwan in the godown and further asserted that they kept godown‑keeper for report about the condition of the godown and the jute that has been kept therein. From this also it appears that the control of the godown was with the defendants Nos. 1 to 5 and for that matter it is quite reasonable for the defendant No. 6 to engage such Darwan as welt as godown‑keeper in their interest as they advanced money against the stock which was kept by defendant No. 1 in pursuance of the agreement Exh. A. So, in the case of hypothecation it was all the more necessary for the Bank to protect goods and for that purpose it appears that they took all steps that were required for the protection of their interest. Whereas on the other hand it does not appear that the plaintiff in order to protect his interest had to do anything rather it may be concluded that the plaintiff was satisfied with the advance of Rs. 30,000.00 as per contract in 1956. Non‑examination of plaintiff himself, who is the admitted sole proprietor of the firm goes to show that the statement made by D. W. 3 about the conditions of the jute trade is the disputed and in that view of the matter in a trade of this kind, the mutual relationship between the Bank as well as the Borrower should be given a proper consideration in order to decide the claim against the Bank on the footing of an agreement entered into between the plaintiff and the Borrower of the Bank. For the purpose of control over the stock in the godown P. W. 1 stated that defendants I to 5 cannot remove goods without prior permission, but this witness stated that he was Assistant Head Master of a High School and then joined the service under the plaintiff. And when he said that he has no knowledge about the Bank's advancing money on hypothecation it goes to show that he has little knowledge about the jute trade. This witness asserted that there is a stipulation in the agreement Exh. 1, that the defendant No. 1 could not remove the jute with out the permission of the plaintiff. Peculiarly enough no such condition appears in the agreement itself. The bare assertion by P. Ws. 1 and 2 that the defendant No. 1 could not remove the goods without the permission of the plaintiff, does not carry any weight for a decision in a case of this nature. The learned Advocate appearing for the appellant relying on the isolated statement of D. W. 1 to this effect "The defendant No. 1 could remove jute from the godown with the permission of the plaintiff." argued that defendant No. 1 had no control over the jute stocked in the godown as he was required to take permission from the plaintiff. This statement of D. W. 1, if read with the whole evidence adduced by him does not carry any meaning when the witness categorically asserted earlier that "A. R. Bhuiya as Messrs A. R. Bhuiya were never in possession of the jute hypothecated to the Bank". D. W. 2 asserted that he inspected the godown of defendant No. 1 and he found Bank's padlock and Bank's Name‑board on the godown and he also found the Bank's godown‑keeper there. He also asserted that all these have been noted in his report Exh. G series from the evidence of D. W. 3 it would appear that the landlord has no claim on goods at any time and he explained how the pressing charges are realised and in that context charge has been explained on cross‑examination as charges which include rent and handling of jute from press to the godown and from godown to the press and further be stated Bank that the landlord supplied labourers for exporting goods and this has been corroborated by Exh. 1 itself as per clause 5 of the said agreement. So for the proper facilities of trade, businessmen generally take assistance from the landlord in the matter of supply of labourers and this D. W. 3 categorically made statement that after the delivery of packed jute, owner of press has no right over it. So, in that view of the matter we do not find reason to hold that the plaintiff had control over the packed jute in godown and for that matter he is entitled to claim lien for meeting his claim as against defendant No.

6. When parties entered into a written contract, the Court would be very slow to import oral evidence for a decision on the interpretation of the terms of the agreement. In the present case the terms of Exh. 1 are very clear and need no explanation by adducing evidence. The learned Advocate appearing for the plaintiff-appellant relied on the case of Miller v. Nasmyths Patent Company Limited (I L R 8 Cal. 312). In our view the facts of the case are quite different and the principle discussed in the case is not applicable in the present case. The learned Advocate further relied on the case of Keene v. Thomas ((1905) I K B D 136) and argued that he had lien over the jute stocked in the godown. The facts in that case are with regard to the hire‑purchase agreement, whereas the present case is quite different and that principle can in no way be made applicable in the present case. We con sidered the cases referred to by the learned Advocate for the appellant but these have no application in the present case. The case of North Western Bank Limited v. John Poyhter Son & Macdonalds (1895 A C 56), is of no assistance for the present case. The case of Pallonjee Eduljee & Sons v. Lonavala City Municipality (A I R 1937 Bom. 41), is also relied on. The principle of section 70 of the Contract Act is not attracted in the present case as earlier discussed. So, the case reported in A I R 1937 Bom. 417 does not apply. In view of our earlier finding that the defendant No. 6 derived no benefit out of the contract entered into between the plaintiff and the defendants Nos. 1 to

5. The principle discussed in the case of Secretary of State and another v. G. T. Sarin & Co. (A I R 1930 Lah. 364), does not apply. Similarly the case of Golam Rahman v. Girihdra Chandra Bose (P L D 1969 Dacca 446) cannot be applied in the facts and circumstances of the case. So, we are of the view that the plaintiff is not entitled to a lien as claimed by him on the jute stocked in the godown. In view of our decision on this point we do not consider it B necessary to deal with ground No. 15 as pressed by the learned Advocate for the appellant, because in our view the question of apportioning the claim does not arise when we hold that there is no lien over the jute stocked in the godown of the plaintiff. The learned subordinate Judge has already given a decree as against defendants 1 to 5 and it cannot be said that the plaintiff is without any relief for his dues. His claim having been satisfied as per prayer, we do not find any reason to give him any other relief, by binding defendant No. 6 to make up the decretal amount of the plaintiff as in our view defendant No. 6 has no connection with the contract entered into between the plaintiff and the defendants 1 to

5. In the circumstances of the case we find no substance in the contentions of the learned Advocate for the appellant. In the result, the appeal is dismissed with costs. The judgment and decree passed by the learned Subordinate Judge are affirmed. AHSANUDDIN CHOUDHRY, J.‑

I agree. K. B. A. Appeal dismissed.