VITHOBA LAXMAN KALAR Vs. MAROTI UKANDSA KALAR

JUDGEMENT

(1.) THE plaintiff applicant sued the defendant for recovery of his cattle which were entrusted to the defendant for grazing or in the alternative for its price and damages for non-return thereof in time. The defendant non-applicant who is the brother-in-law of the plaintiff pleaded that there was an agreement for payment of grazing dues at Rs. 3 per month, that he had the cattle for about 15 months and his grazing dues amounted to Rs. 45, that the plaintiff did not pay the grazing dues in spite of demand which led the defendant to serve the plaintiff with a notice asking him to pay the dues and take away the cattle. There was no reply to this notice with the result that the defendant sold the cattle that were left with him for Rs. 45. The amount due to the defendant for grazing was also Rs. 45. The defendant therefore pleaded that inasmuch as he had to recover Rs. 45 from the plaintiff for grazing dues and his cattle fetched only Rs. 45 the plaintiff had nothing to recover from the defendant. There were other pleas also raised in the plaint and the pleadings regarding the death of some cattle and the number of months for which the cattle remained with the defendant and the value of the cattle, but all of them have been decided against the plaintiff. The lower Court admitting the defence has dismissed the plaintiff's suit. The plaintiff comes up in revision against this decision.

(2.) MY predecessor while admitting the revision has limited the plaintiff to only one point, namely whether the defendant who was a bailee had the right to sell the cattle belonging to the plaintiff after serving a notice on the plaintiff for realization of his dues from the plaintiff. It is argued on behalf of the plaintiff that there is no provision in the Contract Act under which this defendant could do so. Counsel for the plaintiff referred me to Section 170, Contract Act, and argued that the bailee has a right to retain goods until he receives due remuneration for the service he has rendered in respect of them, but there is nothing in law which enabled him to sell the goods and recover his dues. The other side has not been able to show me any provision in the Contract Act in the chapter regarding bailment under which, in the absence of a contract to the contrary, he could exercise the right of selling the property entrusted to him and recover his grazing dues. It is thus clear that if there be no contract to the contrary, the defendant had not the right of his own accord to sell the property for recovery of his dues. The question then reduces itself to this, as to whether in the circumstances of this case it could be said that the defendant had either express or implied authority to retain the property for recovery of his dues and if necessary to sell it for recovery of the same. The parties have not pleaded any express contract to this effect, but reading the plaint and the notice served by the defendant on the plaintiff it can be very easily gathered that the parties understood that before the plaintiff could claim back his cattle from the defendant he had to pay his dues of the defendant, namely, grazing and feeding charges.