DULI CHAND Vs. JWALA PRASAD AND SONS

JUDGEMENT

(1.) This is an application in revision on behalf of a defendant against whom a decree has been passed by the Small Cause Court of Agra in favour of the plaintiff which is a bank. The plaintiff bank lent money to the defendant on an overdraft and a printed letter dated 18 May 1931 was sent by the defendant offering as security against this overdraft "our R/Rts, sent to you for collection." The finding is that certain railway receipts were sent to the bank to collect a certain sum from a consignee or consignees and that the bank endeavoured several times to collect these amounts but the consignees refused to accept the consignment. The letter of 18 May 1931 in the second paragraph stated: In case the R/Rs. are returned unpaid I will settle your account and will take delivery of the R/Rts. immediately I hear from you, failing which authorize you to clear and store the goods) etc.

(2.) Now, a distinction must be drawn between a right and a duty. In the first paragraph of the letter there is a duty-cast on the bank of collection of the payments on the R/Rs. The bank attempted to collect that payment and therefore fulfilled its duty in that particular. In the second paragraph the letter does not impose any duty on the bank to clear and restore the goods but it gives the bank a right to do so. It was optional to the bank to exercise that right or not as the bank chose. In the present case the bank did not choose to exercise that right and the bank did not clear the goods or take possession of them. The bank has now sued on the loan and the defendant claims that there was a bailment under Section 151, Contract Act, and that the bank had failed to take the necessary care of the goods and that defendant was entitled to a set off for loss that occurred to defendant.

(3.) Learned Counsel points out that his client applied by a letter of 4 January 1932 to the Railway company asking for the consignment to be rebooted to the defendant. The reply of the railway company, dated 11 January 1932, is not produced, but a letter in continuation of that reply dated 8 February 1932, is produced and that letter states that on a reference to the plaintiff bank the bank wrote that the railway should not rebook the consignment to defendant as defendant had taken money on the security of the R/R from the plaintiff and R/R was still in possession of the plaintiff. Now, the claim of the learned Counsel for the defendant is that a bailment arose when the bank received the railway receipt. Under Section 148, Contract Act, a bailment is the delivery of goods by one person to another for some purpose upon a contract that they shall when the purpose is accomplished be returned or otherwise disposed of according to the directions of the person delivering them. Under Section 149 the delivery may be made by doing anything which has the effect of putting the goods in the possession of the intended bailee or of any person authorized to hold them on his behalf. It is an essential element of these two sections that there must be the putting into the possession of the bailee or of his agent of the goods in question.