MOHANLAL SOHANLAL Vs. PANNALAL JANKIDAS

JUDGEMENT

(1.) THIS is an appeal by the defendants, as kartas of a joint Hindu family, from a judgment of Mr, Justice Bhagwati, dated March 27, 1946, whereby it was ordered that the plaintiff firm, who is described in the title to these proceedings, as "carrying on business as commission agents", was entitled to have an account taken, subject to certain allowances and to giving credit for payments made on account of: the actual cost price of the said 45 and 47 bales in aggregate 92 bales belonging to the defendants' joint family firms of Mohanlal Sohanlal and Mohanlal Kezriwal and destroyed on account of the fire due to the explosion as mentioned in the plaint as also their commission costs charge and expenses in respect thereof rightly incurred by the plaintiffs as such commission agents of the defendants and that they are entitled to an indemnity from the defendants in respect of the said amount.

(2.) THE defendants filed a counterclaim to the action whereby they claimed credit in respect of the amount of insurance against fire which they alleged the plaintiff firm ought to have taken out or alternatively damages. This counterclaim was dismissed by the learned trial Judge, and he ordered the defendants to pay three-fourths of the plaintiff's costs of the action and counterclaim.

(3.) AS developed and controlled in this Court a short problem emerges, though one which in one of its aspects, is not free from difficulty. It is the case of the plaintiff firm that it was acting as an agent on a commission basis for the defendants for the purchase and despatch of these 300 bales of cloth. So that the alternative and inconsistent plea which the defendants raised in the Court below, that the plaintiff firm was their pacca adatia, does not arise at all, if the defendants' main submission, that as their agent, it was the duty of the plaintiff firm to insure these bales of cloth succeeds, as in my opinion it must succeed. The real difficulty is with regard to the measure of damages, having regard to the Bombay Explosion (Compensation) Ordinance XXXII of 1944 promulgated on July 13 of that year. But in view of his finding in the lower Court that there was no liability of the plaintiff firm to effect an insurance against fire, this question is not dealt with by the learned Judge in his judgment.