P L D 1969 Dacca 269 (PLP)

A. H. KHAN, J.‑This appeal is directed against the judgment and decree of Mr. B. Ahmad, Subordinate Judge, Mymensingh, dated 30th April 1958, in Money Suit No. 3 of 1950/2 of 1947. The suit was filed by Messrs M. Arfan Khan & Co. Ltd. on 3‑4‑1947 against the Provincial Government and others for recovery of a sum of Rs. 31,418‑7‑

0. The facts briefly are as follows. There was an agreement dated 18‑2‑44 between the plaintiff‑company and the Government that the plaintiff would work as Agent of the Government for transport, storage and sale of food grains and other commodities in the Tangail Sub‑division. At that time there was acute shortage of food‑stuff in ‑ Tangail Sub‑division. By a letter dated 15‑2‑44 Sub‑Divisional Officer, Serajganj offend to supply 5000 maunds of atta from the Government stock there, to the Sub‑Divisional Officer, Tangail and on 19‑2‑44 the plaintiff‑company was asked by the S. D. O., Tangail to send his agent to Serajganj for bringing the atta if it was in good condition. A sample of the atta that was brought by the plaintiff- company showed that the atta was not of good quality. The S. D. O., Tangail, however, requested the S. D. O., Serajganj, to reduce the price of the atta from Rs. 11‑8.0 to Rs. 11‑0‑0 per maund and to deliver the same at Porabarighat. After some further correspondence between the two S. D. Os. on 24‑3‑44 the S. D. O., Tangail was informed by a telegram that 1272 bags of atta weighing 2517 maunds, 2 seers 8 chataks was delivered to his Agent, the plaintiff‑company, and a bill was being sent for immediate payment of the price thereof. It appears that the plaintiff‑company on the suggestion of the authorities paid the price of the atta being a sum of Rs. 28,946‑3‑6 by a cheque which was sent to the S. D., O., Serajganj together with a bill of 3412‑5‑0 as transport charge. S. D. O. Serajganj while acknowledging the receipt of the cheque for Rs. 28,946‑3‑6 pies requested the S. D. O., Tangail that regarding transport charges of Rs. 3,442 reference should be made to the Government for direct payment. On 18‑5‑44 the plaintiff ‑company wrote to the Assistant Director, Civil Supplies, Tangail, Exh. 2 (i) that out of the stock of 1272 bags of atta imported from Serajganj under order of S. D. O., Tangail dated 27‑3‑44 a stock of 1030 bags was still lying undisposed of and it was going to be badly damaged and eaten by worms and requested that necessary arrangement be made for disposal of the same. On 19‑5‑44 the S. D. O., Tangail finding it difficult to dispose of the atta in question reported under Exh. 5 (page 19 of the old Paper Book II) to the Assistant Director, Civil Supply as follows: ‑ "Messrs Arfan Khan & Co. were given the liberty to dispose of the stock as best as they could but they have so far been able to sell only 242 bags out of the total stock of 1272 bags. They have paid the price of the entire consignment, which is now their private stock. The difficulties regarding disposal of the stock is that Mofussil dealers are not willing to take the commodity at their own expense. The margin between the price charged by the whole seller and that at which the retailer is to sell to the customer is only 0‑12‑

0. The fixed retail price of 0‑5‑0 per seer cannot be exceeded. Unless some arrange ments can be made for payment of the conveyance charges for outlying centres there is very, little chance of disposal of the stock which is fast deteriorating." On 30‑5‑44 under Exh. 2(1) the Assistant Director informed the plaintiff‑company saying that as the atta was purchased by the plaintiff‑company as wholesale dealers and no restriction was placed upon the disposal, they, the plaintiff‑company, were not entitled to any relief from Government and they could dispose of the atta as best as they could. Thereafter on 5‑6‑45 the plaintiff‑company submitted a petition, Exh. 2(1) to the S. D. O., Tangail stating that they bad been able to sell only a small portion of the Serajganj Atta and the balance of atta valued at Rs. 23,000 was lying undisposed of due to deteriorating condition of atta in question. They also pointed out that the bill for transport charges amounting to Rs. 3,442 had not been ‑paid. Failing to get any satisfactory response, the plaintiff‑company at last after serving a notice under section 80 of the Code of Civil Procedure instituted the present suit demanding (1) price of 1933 maunds of unsold atta at the rate of Rs. 11‑8‑0 amounting to Rs. 22,229:8‑0, (2) commission fee at 4 annas per maund for 1933 maunds Rs. 483‑4‑0, (3) transport charges of Rs. 3,469‑5‑0 and (4) compensation of Rs. 5,236‑6‑0 totalling in all Rs. 31,418‑7‑0.. The Government contested the suit denying, inter alia, the allegation that the plaintiff‑company had advanced the price of the Serajganj atta at the order of the S. D. O., Tangail and asserting that the plaintiff company purchased and took delivery of 1272 bags of atta as wholesale dealers on their own account and responsibility and "not those of the Government as alleged in the plaint." In short, the Government asserted that the plaintiff‑company was not entitled to get any sum on account of Serajganj Atta. The learned Subordinate Judge decreed the suit in respect of only the price of 1933 maunds of atta and commission at 4 annas per maund amounting to Rs. 22,712‑12‑0, dismissing the other claims for transport charges and compensation. Thereupon an appeal being No. 58 of 1951 was preferred in this Court by the Government. A Division Bench of this Court consisting of their Lordships F. Akbar and H. Rehman, JJ. (as they then were') upheld the finding of the trial Court that the atta in question was Government property. Their Lordships also held that in this transaction the plaintiff‑company throughout were acting as agent of the Government and hence they were entitled to get the money. Their Lordships then observed as follows: "The question, therefore, remains: Whether the plaintiff‑company is entitled to claim Rs. 22,229‑8‑0 as the price of 1933 maunds of atta, which could not be disposed of by them as the Agent of the Government. In our opinion they as agent are entitled to get the money after proper rendition of account of atta, which they received on behalf of their principal. From the papers filed by the plaintiff‑company, it seems that they submitted their last return for the month of April 1947, in May 1947, showing that they had 1933 maunds of atta in stock. They filed this suit on 3‑4‑1947, P. W. 2, Md. Asghar Khan, Managing Director of plaintiff‑company, who was examined in this case on 22‑8‑50, stated that the atta was still in godown. The learned Subordinate Judge, while decreeing the claim for unsold atta did not pass any order as regards 1933 maunds of atta. The plaintiff‑company, as agent of the Government, must account for the atta before getting the price thereof. Neither they have stated in the notice, which they served under section 80 of the Civil Procedure Code nor in the plaint that they ever offered the unsold atta to the Government or gave them the full account thereof. The learned Advocate for the plaintiff‑respondent has stated that as the atta was unfit for human consumption, it was destroyed by them after the disposal of the suit. The question then arises, if it was really unfit for human consumption, and if the plaintiff ‑company was entitled to destroy it without giving notice to the Government. These questions must be gone into in deciding the claim of the plaintiff company Unfortunately, the learned Subordinate Judge has not done so." Their Lordships, therefore, allowed the appeal and set aside the decree of the Court below and sent back the case on remand. In pursuance of the order of remand both parties filed additional pleadings on the points raised. In the additional plaint of the plaintiff‑company filed in the suit after remand it was stated, inter alia, that after the suit was disposed of in September 1950 the condition of the atta had become so deplorable that it created an unhealthy and obnoxious atmosphere in the locality, and as neighbours began to protest, part of the atta was thrown in a khal which passes through Tangail town, but when it was found that some bullocks had died as a result of eating part of the atta, the Municipal authorities prohibited throwing of the atta into the khal and it was there after buried under the earth along with the gunny bags which had become rotten. In the further written statement filed by the Government allegations of throwing atta into the khal and burying the remain ing atta was denied and it was asserted inter alia "whatever may be the condition of the atta unless the Government allows him to do so." It was also asserted that the defendant "has reason to believe that the plaintiff‑company has disposed of atta and gunny bags in other ways than alleged in the aforesaid amended petition . . . ." The direction of this Court in the order of remand was for disposal of the suit on determination of the questions (1) whether the remaining 1933 maunds of atta had been destroyed and (2) if so, whether the plaintiff-company was entitled to do so without giving notice to the Government. The learned Subordinate Judge came to a finding in the affirmative in respect of both these issues. He found that the plaintiff company after the disposal of the suit in the trial Court had destroyed the atta in November 1950, throwing part of the stock into the Tangail khal and the remaining stock by burying it under the earth, as it had become unfit for consumption by men or cattle, and they did so in good faith, without seeking any order of the Government in this behalf before doing so. We have been taken through the entire evidence and we find that it is established from the evidence of P. W. 5, Dr. Kazi Gholam Mukhtar, Vice‑Chairman of Tangail Municipality, P. W. 6 Abani Mohan Roy, P. W. 7 Ahmed Ali, P. W. 8 Birendra Mohan Guha, P. W. 10 Ram Ahtar Sardar that the atta in question had become so rotten that it was giving out foul smell and it was unfit for "human or cattle consumption" and when part of it was thrown into the khal and some heads of cattle died on eating part of this atta, and when it was brought to the notice of the Municipal authority, further throwing of atta into the khal was stopped and the plaintiff‑company buried the remaining atta bags in a big pit dug for the purpose. Admittedly there was a local inspection of the spot where the atta was buried at which D. W. 2 Mirza Abdul Beg, Inspector of Food, was present on behalf of the Government. According to his evidence the Manager of the plaintiff‑company showed the places to be dug and the Commissioner dug two ditches, each about 3 ft. deep and 3 cubits long and 1 to 2 cubits broad, and a whitish layer was found at a depth of 3 ft. but the thick ness of the layer was not ascertained. In his cross‑examination he was constrained to admit that he did not request the Com missioner to "list the different spots of the field to find out the areas in which the atta might have been buried". He had also to admit that in his report to Government that he attended the local inspection, he did not state that the local inspection had been unsatisfactory. On the other hand, P. W. 6 has stated that the pit was 40 to 50 cubits in length and 20 to 25 cubits in breadth and 3 to 3 cubits deep. P. W. 8 Birendra Mohan Guha, a contractor of the plaintiff- company has deposed that he supervised the burying of the atta and he, too, has stated that the pit was 40/50 cubits long and 20 and 25 cubits broad and 3 or 4 cubits deep. Considering the entire evidence and facts and circumstances of the case we have no manner of doubt that the entire quantity of 1933 maunds which had remained unsold was destroyed by the plaintiff‑company, as this was the only course left to get rid of it. It should be recalled here that this was asserted by the learned counsel of the plaintiff‑company even at the time of haring of the first appeal before this Court in August 1956. The only other question for decision is whether the plaintiff- company is entitled to the price of the atta, having destroyed it without giving notice to the Government. It is evident from Exh. 9 series, the regular returns submitted by the plaintiff‑company to the Civil Supplies Department up to May 1947, that there was a stock of 1933 maunds of atta with the plaintiff‑company. On 22‑8‑50 Md. Asghar Khan, Managing partner of the plaintiff‑company in his evidence had asserted that the unsold atta was still in the godown and there was no cross‑examination on this point at all. This fact itself shows that the entire unsold quantity was lying in the plaintiff's portion of the godown when they had been forced to remove the same under the pressure of the Civil Supply Department. Even at the time P. W. Shamsul Huq went to Serajganj to bring the atta on behalf of the plaintiff‑company, as agent of the Government the atta as had appeared to be old he brought some sample with him as he did not venture to purchase the atta. On 26‑2‑44, the Sub‑Divisional Officer, Tangail, wrote to the Sub‑Divisional Officer, Serajganj stating, inter alia, that the price of Rs. 11‑8‑0 charged by the letter per maund should be reduced. "We cannot", he wrote, "put the commodity to sale at 5 annas per seer which is the rate fixed by Government. The sample shows that the atta is not of good quality, and (will) not last long and (will) have to be disposed of quickly" vide Exh. 2 (a). The atta, however, could not be brought to Tangail until towards the end of March 1944 (vide Exhs. 2 (a) and 2 (b) because of the question of payment before the atta could be brought. The difficulty was resolved on payment of the purchase money by the plaintiff‑company on the direction of the Sub‑Divisional Supply Officer, and approval of the Sub‑Divisional Officer, Tangail and on 2‑4‑44 the plaintiff'‑company sent a cheque for Rs. 28,946‑3‑6 to the Sub‑Divisional Officer, Tangail together with a bill for Rs. 3,442‑2‑0 being the transport charges from Serajganj to Tangail. This bill, however, was never paid. Exh. 8 series which are petitions by retail dealers for atta etc. to the Civil Supply Officer, Tangail, show that from 3‑4‑44 permits for atta from the stock of the plaintiff company were being issued for small quantities. Thus in Exhs. 8, 8 (b) the request was for 10 bags of atta and only 3 bags were allowed in each case. Exh. 8 (h) shows only 3 bags were supplied against a demand for 5 bags. The plaintiff company themselves asked for 30 bags (Exh. 8) for their 10 retail shops at 10 centres and only 10 bags for each centre were allowed. Exh. 8 (w) C dated 5‑4‑44 shows that against a request for 30 bags by another retail seller only 10 bags were allowed. This cautiousness ire respect of release of the fast deteriorating stock of the atta appears to have been entirely misconceived. The letters, Exh. 5 dated 19‑5‑44 of the S. D. O. to the Assistant Director, Civil Sup plies, hows that only 242 bags out of 1272 bags of Serajganj atta could be sold, that is to say, even at that date more than 20001 maunds of atta remained unsold and it was a matter of concern. Now, from the return Exh. C series, it will appear that no atta had been sold in the whole month of September 1944. As earlier returns are not on the record it cannot be found out what is that quantity of atta sold in the earlier months. Though on 30‑5‑44 the Assistant Director, Civil Supply informed the plaintiff company that the stock of atta was their own property and that they could dispose of the same as best they could. The following 3 orders Exh. E at page 20 (old Paper Book 11) curiously go to show something else. Those three departmental orders in Exh. E are as follows: ‑ "Exh. E.‑Notes and orders in connection with the disposal of certain deteriorated commodity, dated 19th July 1944, etc. Reference your order dated 4‑7‑44 the S. L. R. O. I am sending the entire file to you (return requested). My order dated 26‑5‑44 was passed after personal discussion and consultation with the Deputy Director of Civil Supplies, at Mymensingh. Having failed to get a satisfactory reply from me Messrs Arfan Khan & Co. have addressed this petition to you. This method of approach is undesirable and should be deprecated. Ratan Singh, A. D. C. S. 13‑7‑44 365/ UO/ 13‑7‑

44. Maulvi Abdul Karim, P. C. S. S. D. O. Tangail. Seen. I had a discussion with A. D. C. S. and Deputy Directors, C. S. on the subject. The commodity has not deteriorated so much as was reported and it will be disposed of as suggested by the Deputy Director. A. Karim, 7‑8‑44 Seen. Action suggested by the Deputy Director is being taken. Ratan Singh, A. D. 9‑8‑44." The above orders make it clear that even on 7‑8‑44 the S. D. O., Tangail was insisting that the Serajganj atta had not deteriorated so much and that it could not be disposed of as suggested by the Deputy Director "what action was being taken as noted by Mr. Ratan Singh, Assistant Director on 9‑8‑44" is not in evidence. It is, however, clear that the Civil Supplies Department was still treating the disposal of atta of their own concern. But, thereafter on 5‑9‑44, in his inspection note Mr. Rattan Singh, Assistant Director, on inspecting the Government godown at Tangail noted that he found "rotten atta" of the whole stock of the plaintiff‑company was placed side by side with the fresh atta from Mymensingh and found worms running from the "rotten atta" towards the fresh atta and he directed the Store‑Keeper of the godown to remove the plaintiff‑company's atta from the main Hall of "Manodaini Hall" a building which was partly rented by the Government as its godown, to the part rented by the plaintiff‑company, for stocking their own goods. In the judgment of this Court in the previous appeal it was observed as follows: "It was only in May 1944, when the S. D. O., Civil Supply found that the atta was fast deteriorating and had no market that he attempted to throw the burden on the plaintiff-company by submitting a report to the effect that as the plaintiff‑company had paid the price of entire consignment it was their private stock. Thereafter this view was taken up by his Department and every one, including the Deputy Director of Civil Supplies, did not hesitate to throw the burden on the plaintiff‑company." The above finding is borne out by the evidence discussed above. In the circumstances, we do not see what the plaintiff -company could do but to write to the authorities for arranging the disposal of atta as they did by their letter dated 30‑5‑44, since, the atta had become damaged and there was no market for it instead of directing the plaintiff‑company what they should do with the atta, as it should have done as the principal, the Government went on writing to the plaintiff‑company that the atta was their private stock and the Government had no concern with it and on insisting removal of the same to the plaintiff company's own godown or wherever they pleased. The learned Government Pleader Mr. T. H. Khan, has tried to argue on the basis of the evidence of D. W. 2 Mirza Abdul Beg, given at the further hearing on 3‑4-58 that as the stuff was deteriorating and as the Government was asserting that the atta was private property of plaintiff‑company the latter, as Agent of the Government should have disposed of the atta for cattle consumption if it had become unfit for human consumption. It is true that the aforesaid witness has stated in his evidence: "for deteriorating stuff in Government godown the Inspectors submit a report to the Directorate, with a sample. The Direc torate, then surveys the entire stock and passes necessary orders. In case stuff found unfit for human or cattle consumption, order for destruction is generally passed." Mr. T. H. Khan has referred to section 211 of the Contract Act in support of his above contention. That section runs thus "An agent is bound to conduct the business of his principal according to the directions given by the principal, or, in the absence of any such directions, according to the custom which prevails in doing business of the same kind at the place where the agent conducts such business. When the agent acts otherwise, if any loss be sustained, he must make it good to his principal, and if any profit accrues, he must account for it." In view of the facts and circumstances of the present case, section 211, to our mind, can have no application at all. The principal in this case, the Civil Supply Department, was on the spot and it was their duty to issue directions to the agent for disposal of the atta. The letter dated 30‑5‑44 Exh. 2 (1) of the Assistant Director, denying relationship of principal and agent and saying that plaintiff‑company could dispose of the atta as best as they could, in the circumstances, amounted to saying that the Government had no responsibility in respect of the atta and it was entirely the headache of the plaintiff‑company as to what they should do with it. It should be mentioned here that in the supplementary written statement filed after remand the defence taken is that the atta "was disposed of" by the plaintiff company "otherwise dishonestly" and it was not the defence that the plaintiff‑company as agent of the Government should have disposed of the atta on their own responsibility as agent. There is no such case in pleadings of the defendant, not to speak of any evidence to show that the "rotten atta" in the stock of the plaintiff‑company could be sold as cattle fodder. Apart from this, the plaintiff company as early as May 1944, had requested the Civil Supply Department for disposal of the atta, but there was no satisfactory response. In view of all this, we are unable to find any substance in the contention of the learned Government Pleader that the plaintiff‑company should have sold the atta as cattle fodder as agent of the Govern ment. Further, it is not open to the defendant to reprobate and approbate at the same time. On the evidence and circumstances discussed above, we find that it has been clearly established that the entire stock of unsold atta was destroyed by the plaintiff‑company, as the only course open to them and that they did so not only in good faith but out of sheer necessity. We also find that considering the facts of the case and negligence of the Civil Supply Department in the matter, the plaintiff was entitled to destroy the unsold atta without any further communication with the authorities. We accordingly find no merit in this appeal. The appeal is accordingly dismissed with costs. The judgment and decree of the trial Court are hereby confirmed. A. S. CHOWDHURY, J. ‑I agree. S. A. H. Appeal dismissed.