DHANRAJ NATHMAL Vs. MANIKLAL

JUDGEMENT

(1.) THE plaintiff respondent sued the defendant appellant for price of certain cloth. The defence was that there was no completed sale and hence he was not liable for the price of the cloth sent to him. He however, offered to return the cloth provided he was paid the godown charges in respect of them. The trail court held that the sale was not completed and consequently the defendant was not liable for the price, but as the cloth alleged to have been sold to the defendant was in the latter's custody, it directed the defendant to return it to the plaintiff and if the cloth was not returned, it further decreed that the plaintiff was in that event entitled to Rs. 2998/12 -, the price of the cloth, Rs, 851/9/6, interest on it, and -/9/ - cost of the notice, totaling Rs. 3850/14/6. No godown charges were decreed as none were proved.

(2.) THE first contention of the learned counsel for the defendant -appellant is that interest could not be awarded. The contention is correct. The decree was being passed against the defendant -appellant on the basis that he was a bailee of the goods as the sale in respect of them had not been completed. What the plaintiff was therefore entitled to on the date of the decree was the cloth of its price on that date. All that could be decreed under the circumstances was the return of the cloth, or in the event of the defendant's default in returning it, its price, subject to his paying to the defendant godown charges in respect of it, if proved. The claim for interest shall therefore have to be disallowed.

(3.) SO far as the liability of a bailee is concerned, Holt C. J, said in Coggs V. Bernard 92 E. R. 107. The borrower is bound to the strictest care and diligenee, to keep the goode, so as to restore them back again to the lender, because the bailee has a benefit by the use of them, so as if the bailee be guilty of the least neglect, he will be answerable: as if a man should lend another a horse, to go westward or for a month; if the bailee goes northward, or keep the horse above a month, if any accident happens to the horse in the northern journey, or after the expiration of the month, the bailee will be chargeable; because he has made use of the horse contrary to the trust be was lent to him under, and it may be that if the horse had been used not otherwise than he was lent, that accident would not have befallen him......But if the bailee put this horse in his stable, and he were stolen from thence, the bailee shall not be answerable for him. But if he or his servant leave the house or the stable door open, and the thieves take the opportunity of that, and steal the horse, he will be chargeable; because the neglect gave the the thieves the occasion to steal the horse but yet he shall not be chargeable where there is such a force as be cannot resist.