PANNALAL JANKIDAS A FIRM Vs. MOHANLAL

JUDGEMENT

(1.) This is an appeal from a judgment of the H. C. at Bombay. Although the record is heavy and many points were argued in the trial Ct. and in the Ct. of appeal at Bombay, the important point argued before us in only one.

(2.) The applts. (pltfs.) area firm of commission agents in Bombay. The resps. (defts.) were their constituents. Accounts between the parties in respect of their dealings were made up and settled upto 30-10-1943. Piecegoods and yarn continued to be purchased and consigned by the pltfs. to the defts.' joint family firm thereafter. One bale of piecegoods was purchased and despatched in Nov. 1943. In Jan. 1944 restrictions were imposed against the consignment of piecegoods and/or yarn outside Bombay by rail without obtaining the necessary previous permit from the Textile Commr. at Bombay. On or about 6-2-1944 Mohanlal of the defts joint family firm came to Bombay and the plfts. purchased on their behalf 278 bales of piecegoods. Ninety-four out of those were desptached according to the defts.' instructions. The plfts. according to the defts.' instructions, applied for and obtained permit to consign several more bales. On the permits being issued, they were despatched on 14-2-1944 to destinations given by the defts. On 10-4-1944, the plfts. after obtaining the necessary permits, despatched more bales as directed by the defts. The dispute between the parties relates to the remaining 92 bales which were stored in godown NO.424 Baroda Street, Argyle Road, Bombay, pending the receipt of permit for consigning the same.

(3.) On 14-4-1944, there occurred a big explosion in the Bombay harbour which destroyed several immovable properties and godowns with movable property covering a large area, near the port. Fires were caused by the explosion and they also caused considerable destruction of movable and immovable properties. These 92 bales purchased by the pltfs. on account of the defts, were also destroyed either by the fire or the explosion. The pltfs. filed a suit to recover the price of these 92 bales from the defts. on the ground of the agent's right to indemnity. The defts. contended that the plfts. were their pucca adatiyas, that the property in the goods did not pass to them and that they were not liable for the price till delivery of the goods was given to them. In the alternative, in para. 4 of their written statement, they pleaded that when Mohanlal of the defts'. firm was in Bombay and the pltfs. stated that the goods could not be railed until permits were obtained, it was agreed between the pltfs. and the defts. that the defts. were to pay annas four per bale per month to the pltfs. for insurance charges and the goods were thus to remain insured till despatached according to their instructions. In para. 21 of their written statement, they contended that if their plea that the plaintiffs were pucca adatiyas was not accepted and the plfts. were held to be their commission agents, the plfts. were guilty of negligence and misconduct in the business of agency as in spite of specific instructions and agreement they had failed to insure the goods. They contended that owing to this negligence and misconduct the plffs. were not entitled to the indemnity claimed. In the alternative they contended that the pltfs. were liable to make good the loss caused to the defts by their failure to insure the said bales. They contended that they were entitled to set off this loss against the claim for the price. They also counter -claimed the same amount if their set-off was not allowed. On these pleadings the parties went to a hearing. Issue to covered the defts'. plea about the pltfs'. negligence and misconduct in not insuring the 92 bales and the counter-claim arising therefrom.