BHAGWANDAS SITARAM Vs. ALBION JUTE MILLS CO LTD

JUDGEMENT

(1.) This is a suit by the plaintiff for specific delivery of 50 bales of hessian cloth and in the alternative, for value of the said goods and in the further alternative, for recovery of a sura of Rs. 33,825/- as damages for conversion of the goods.

(2.) The case of the plaintiff is that by contract in writing, bearing No. 3362 dated October 8, 1952, which was entered into in the standard Form 'A' of the Indian Jute Mills Association contract, the defendant No. 1, Albion Jute Mills Co., Ltd. sold to one Bhagwandas Goel & Sons 150 bales or three lakh yards of hessian cloth, under the said contract the goods were deliverable in November 1952. On November 21, 1952, the Bald Bhagwandas Goel & Sons issued shipping instructions to the defendant No. 1 for placing the said goods alongside the vessels s. 'Salatiga' on their own account, and pursuant to such shipping Instructions the defendant No. 1 placed the said 150 bales of hessian cloth alongside the said steamer within November 1952. On December 2, 1952, Bhagwandas Goel & Sons sold 50. bales of hessian cloth out of the said 150 bales to Messrs. Khusoram Benarasilal, the defendant No. 3 under a contract of the same date. Thereafter on that very day Khusiram Banarasilal in its turn sold the said 50 bales of hessian cloth to the plaintiff firm under a contract dated December 2, 1952, bearing No. 23811. On the same day the plaintiff issued shipping instruction in their account to Khusiram Banarsilal for placing the goods alongside the said vessel s.s. 'Salatiga'. Khusiram Benarasilal passed the said shipping instruction in due course of trade to their sellers Bhagwandas Goel & Sons, and Bhagwandas Geol & Sons, in their turn issued shipping instructions to the defendant No. 1 on December 3, 1952. It is alleged in the plaint that the defendant 1 assented to the sale of the said goods by the said Khusiram Benarasilal to the plaintiffs & transferred the said goods to the account of the plaintiffs; but as the said vessel 'Salatiga' shut out the said goods, the defendant No, 1 issued two pucca-delivery orders, being P.D.O.'s Nos. 1068 and 1069 dated December 3, 1952, for 25 bales each in favour of Bhagwandas Goel & Sons. The said pucca delivery orders were issued by the defendant No. 1 against payment in full by the said Bhagwandas. Goel & Sons and all the parties concerned, that. is, the plaintiff and the said Khusiram Benarasilal also paid for the said pucca delivery orders to their respective sellers. Upon such payment the-said two delivery orders were endorsed and delivered by the defendants to the plaintiff who became the last holder of the said delivery orders.

(3.) On December 18, 1952, the plaintiff company issued a fresh shipping instruction for amending the marks on the goods and for placing the relative goods alongside the vessel s.s. 'Wonosari'. The said shipping instruction also passed in the same chain and reached the defendant No. 1 on December 20, 1952. Thereupon pursuant to such shipping instruction the defendant No. 1 placed the goods covered by the two delivery orders and with the marks amended as directed, alongside the said vessel and thus unconditionally appropriated the said goods to the plaintiff's contract with their assent, it is further alleged that the goods were afloat alongside the vessel since about December 2, 1952. It is further the plaintiff's case that according to the custom and usage of the market in manufactured jute goods in Calcutta, pucca delivery orders for jute goods are issued by the Jute Mills only on payment and are passed from hand to hand by endorsement and are sold and dealt with in the market as absolutely representing the goods to which they relate and further that such delivery orders are recognised in the Jute market as documents of title to goods thereby covered and under such delivery orders the transferee acquires a title to the goods to which they relate. It is alleged that by reason of the premises the plaintiffs were at all material times and are still the owners of the said 50 bales of hessian cloth and are entitled to have the same delivered to them or to their orders, but on or about January 6, 1953, the defendant No. 1 with full knowledge that the goods were being exported on the plaintiff's account wrongfully refused to register the said two pucca delivery orders in the plaintiff's name and to deliver the said goods according to the order of the plaintiffs and falsely claimed a lien on the said goods and/or the pucca delivery orders for an alleged claim against the defendant No. 2, Bhagwandas Goel & Sons. The plaintiff disputes the defendant No. l's claim of the said Hen and alleges that by reason of the wrongful breach of contract and/or by reason of the conduct of the defendant No. 1 in depriving the plaintiff of its property and in wrongfully converting and/or detaining the said goods, the plaintiff has Buffered damage which it assesses at Rs. 33,825/-. It is alleged that the defendant has not paid the said sum or any portion thereof in spite of demands.