HIRALAL GHOSE Vs. LAL BEHARY GHOSE

JUDGEMENT

(1.) This is an appeal from a judgment and decree dated May 2, 1964, by which the learned Subordinate Judge, Sixth Court, Alipore, 24 -Parganas, dismissed the Plaintiff's suit. The short facts of the case are as follows : The Plaintiff was the owner of two lathe machines which he had acquired from M/s. Parry's Engineering Ltd. The machines remained idle with him as, for various reasons, the Plaintiff could not start the workshop which he proposed to open. Sometime in 1944 the Plaintiff at the request of a cousin named Rule Ghose gave these two machines to him for use on the condition that the Plaintiff could have them whenever he wanted them back. The Defendant was a nephew of the. Plaintiff. He had a workshop at Bondel Road, Ballygunge. The Defendant requested the Plaintiff to let him have the use of the lathe machines for a year. He agreed to return the machines to the Plaintiff whenever the Plaintiff wished to take them back. This proposal was acceptable to the Plaintiff and the Plaintiff requested Rule Ghose to deliver, the two machines to the Defendant. On September 28, 1950, the smaller machine was delivered by Rule Ghose to the Defendant. The Defendant at the time of taking delivery of this machine signed a challan. The bigger machine was, however, retained by Rule Ghose for some more time; it was, however, delivered to the Defendant on or about January 17, 1951, through the Defendant's darwan Jhakuram who signed the challan on behalf of the Defendant and took delivery pf the machine from Rule Ghose. Even after a year was over, the Defendant continued to use those two machines with the permission of the Plaintiff. The Defendant requested the Plaintiff to let him have the use of the machines until the Plaintiff wanted them for his own purpose. In or about May 1958, the Plaintiff intended to open an engineering workshop and asked for the return of the two machines. The Defendant failed and neglected to deliver the same. The Plaintiff then arranged to have a letter sent by his pleader to the Defendant asking formally for return of the machines. This letter which was dated May 25, 1958, was registered and came back to the Plaintiff's lawyer with the remarks 'not claimed'. Two other registered letters were sent by the Plaintiff to the Defendant. The last of these letters was dated July 15, 1958. The. Defendant, however, 'did not return the machines to the Plaintiff. Upon these facts the Plaintiff has asked for damages for unlawful detention of the two machines from July 1954 till the recovery of possession. In the alternative, the Plaintiff has further asked that, in the event' of the two lathe machines not being in good working order, the Plaintiff should be granted a decree for compensation amounting to Rs. 15,000 which the Plaintiff assessed to be the value of the two lathe machines.

(2.) The Defendant contested the suit and in his written statement denied all the allegations of the Plaintiff. He even claimed that it was he who purchased the lathe machines from Joyasree Engineering Works in July 1950. In any case, he denied that he took delivery of the machines from Rule Ghose.

(3.) The issues that were settled for determination on the pleadings of the parties are as follows: