KHAIRUL BASHAR Vs. THANNU LAL

JUDGEMENT

(1.) This is a first appeal by defendant No. 1 in the suit. The trial Court has passed a decree for Rs. 20,764/14/- with proportionate costs in favour of a Committee consisting of plaintiff No. 10 Babu Prahlad Das, plaintiff No. 11 Babu Girdhar Das and defendant No. 2 Abut Latif against defendant No. 1 Kharul Bashar Proprietor of the firm Haji Abdullah Daniyal. It would appear that in Qasba Mau Nath Bhanjan, Pergana Mau, District Azamgarh, there is a firm named Sheo Ram Baleshwar Prasad. The proprietor of this firm was one Sheo Ram. Sheo Ram is defendant No. 5 in the suit. His firm used to do business in yarn. In 1942, Sheo Ram became heavily indebted. According to the plaintiff's case, in August 1942 there was a rumour that Sheo Ram had become insolvent. On the 17th of August, 1942, he had closed his shop. This resulted in a rush of creditors who went to Sheo Ram, and insisted on payment of the debts due to them. Sheo Ram expressed his inability to pay the debts in cash. He, however, said that he had 44 bales of yarn and 900 tolas of silver which he entrusted to his creditors to enable them to convert the same into cash and distribute the proceeds among themselves. The creditors for whose benefit 44 bales of yarn and 900 totals of silver were handed over, are arrayed as plaintiffs Nos. 1 to 11 and defendants Nos. 6 to 12, Defendants 6 to 12 are styled as defendants-fifth party in the present case. Defendant No. 5 also executed a writing on the same date in favour of his creditors. This writing is Ext. 15. The creditors of defendant No. 5 collected together and appointed a Committee consisting of three persons, namely, plaintiff No. 10 Babu Prahlad Das, Plaintiff No. 11 Babu Girdhar Das and defendant No. 2 Abdul Latif mentioned above to arrange for the distribution of the sale proceeds of the above property. For the purpose of negotiating the sale, Babu Prahlad Das was appointed as the intermediary. The formal agreement incorporating the above arrangement was executed by the creditors on the 1st September, 1942. This agreement is Ext. 12. The goods were entrusted to defendant No. 1 by the creditors, as defendant No. 1 was a firm in whose respectability and integrity the creditors placed reliance and trust. The arrangement was that he would sell the goods on chits to be issued by Babu Prahlad Das, that he would keep the sale proceeds in deposit with him and that he would hand over the same for distribution to the creditors after the money was collected.

(2.) According to the plaintiff's case, 22 bales of yarn were purchased by defendant No. 3, 1 bale by defendant No. 4, 2 bales by defendant No. 12, 2 bales by plaintiff No. 3 and 2 bales by plaintiff No. 10. The entire price of 29 bales of yarn sold to the said parties was about 9,364/14/which was kept by defendant No. 1 by way of deposit. As to the remaining 15 bales of yarn, the evidence of the plaintiffs is that that was also sold off by defendant No. 1. The value of 44 bales of yarn entrusted to defendant No. 1, according to the allegations in the plaint, was Rs. 19,764/14/- and the price of silver weighing 900 tolas was Rs. 1000/- thus the total price of the yarn and silver entrusted to defendant No. 1, according to the plaintiffs was Rs. 20,764/14/-. The plaintiffs further claimed an amount of Rs. 5,607/- as interest. They, therefore, prayed for a decree of a total amount of Rs. 20,764/14/- plus Rs. 5,607/- i.e., Rs. 26,371/14/- with pendente lite and future interest against defendant No. 1. In the alternative, they prayed for a decree of Rs. 9,364/14/-, the price of 29 bales of yarn sold by defendant No. 1, and recovery of silver weighing 900 totals and the remaining 15 bales of yarn of the same quality as was entrusted to defendant No. 1 by the creditors.

(3.) Defendant No. 1 denied the plaintiff's claim, He set up a different version of the story. According to him, only thirty-eight and a half bales of yarn and some silver ornaments weighing 286 tolas were entrusted to him on the 17th of August 1942. He, however, alleged that the entrustment was not by the plaintiffs and defendants fifth party, but by defendant No. 5 Sheo Ram. The reason for this was that defendant No. 5 was a Congressman, and he was afraid that he might be arrested in August disturbances. Defendant No. 1 had, therefore, taken custody of the said goods on behalf of defendant No. 5. On the chits issued by defendant No. 5 dated the 17th August, 1942 he paid Rs. 3,656-4-0 to Hafiz Sayeed of Orai on 28th August, 1942. On another chit of defendant No. 5 dated the 19th August, 1942, he paid Rs. 3,810/- to Haji Mohammad Umar Mohammad Zahur on the 26th August, 1942. On a third chit issued by defendant No. 5 in November, 1942, he paid Rs. 6,206/4/- to the firm M. Sadiq & Co. defendant No. 12 through its manager Noor Mohammad. He alleged that he had no knowledge of any agreement of the 1st September 1942 among the creditors. After making the above payments, according to him, he had handed over the remaining goods to defendant No. 5 and obtained a discharge from him. He further alleged that the suit was filed against him as a result of enmity and was not legally maintainable. He also pleaded that the suit was barred by limitation.