BALKRISHAN R DAYMA Vs. BANK OF JAIPUR LTD

JUDGEMENT

(1.) THIS is an appeal against the judgment and decreed of the Principal Judge, City Civil Court, Bombay, dismissing the plaintiff's suit except for Rs. 1,000 awarded as damages and interest thereon. The plaintiff filed the suit against the defendants for return of 40 bales of yearn pledged by him with the first defendant bank, or for Rs. 14,210 as the value thereof, or in the alternative for the said sum of Rs. 14,210 as damages for failure to return the said 14 bales, and interest and costs. The plaintiff had also, in addition to the aforesaid reliefs, claimed Rs. 5,000 as damages for dishonour of three cheques drawn by him on his current account maintained in the first defendant bank and interest thereon,

(2.) THE plaintiff's case may be briefly stated as under : The plaintiff was at all material times carrying on business as merchant in cotton yarn in Bombay in the firm name and style of M/s Roopnarayan Sharma; that he used to store his cotton-yarn bales on Godown No. 8 Gulalwadi Bombay; that prior to 15th September, 1963, the plaintiff had a current account with the first defendant bank its Kalbadevi branch in the firm name and style of M/s Roopnarayan Sharam; that on or about 15th September, 1953, the plaintiff obtained from the defendants a cash credit account facility and the first defendants opened in the plaintiffs name at its Kalbadevi branch a cash credit account; that the first defendants agreed to advance in the said account a sum of Rs. 50,000 to the plaintiff's against the pledge of goods to be store by the plaintiff in the plaintiffs said godown at Gulalwadi and the keys and control thereof was to be handed over to the first defendants. The terms and conditions on which the said cash credit account was to be opened and secured by pledge of goods were embodies in an agreement dated 15th September, 1953, exhibit No. 1. By the said agreement it was, inter alia, agreed that the plaintiff would be at liberty from time to time to withdraw any of the pledged goods, provided the advance value of the said goods was paid into the said cash credit account by the plaintiff, or provided the necessary margin required under the said agreement was fully maintained and the plaintiff had agreed to maintain in favour of the first defendants a margin of 30 per cent. of the value of goods. According to the plaintiff, at the time of the said agreement the handed over the keys of the said godown to the first defendant's representative and the same continued to remain with the first defendants and as such the control and possession of the said godown thereof remained with the first defendants and plaintiff had no access to the said godown. In pursuance of the said agreement the first defendants from time to time advanced to the plaintiff diverse amounts in the said cash credit account against bales of cotton yarn pledged with the first defendants and stored in the said godown, and the plaintiff also from time to time made several payments against release of several bales stored in the said godown.

(3.) ACCORDING to the plaintiff, on 15th March, 1955, there were about 53 bales of cotton yarn pledged with the first defendants under the said agreement and the same were lying in the said godown, that on that day the plaintiff wanted to release two bales of cotton yarn and for that purpose he addressed a letter to the first defendants in that behalf and when the plaintiff's representative went to take delivery of the two bales it was found that one of the two bales, viz. , bale No. 80, along with 13 other bales, were found missing and the first defendants could not trace the said 14 bales, and, therefore, the plaintiff's representative only obtained delivery of the said bales No. 60. Thereafter certain correspondence ensued between the plaintiff and the first defendants, exhibit No. 4 (collectively ). By their letter dated 15th March, 1955, but delivered to the plaintiff on 16th March, 1955, the first defendants informed the plaintiff that only 38 bales of the value of Rs. 34,475 were lying in the godown; that the advance value against the said 38 bales came to Rs. 22,600 and, therefore, the cash credit account was overdrawn by the plaintiff to the extent of Rs. 12,200; and the first defendants had, therefore, earmarked the plaintiffs balance of Rs. 8,000 in the plaintiff's current account against the said shortfall. In the circumstances, the plaintiff alleged that the 14 bales which were lying in the said godown had been lost to the plaintiff and the first defendants were responsible for the said loss and were liable either to return the said bales to the plaintiff or pay Rs. 14,210 either as the value thereof as damages for the first defendant's failure to return the said bales.