NENSUKHDAS SHIVNARAEN Vs. BIRDICHAND ANRAJ

JUDGEMENT

(1.) This is an appeal from a judgment of Beaman, J.

(2.) The following facts are undisputed.

(3.) The plaintiffs consigned 440 bales of Malkapur cotton from Malkapur to the defendants in Bombay for sale on commission, and the defendants advanced against the bales 80 to 85 per cent.of the then market value of the cotton. The railway receipts were handed to a firm of Muccadams, Damji Hirji and Co., who took delivery of the bales and stored them on their jetha at Colaba. Damji Hirji and Co. failed on the 30th of September 1913. At that date 300 of the plaintiffs bales were accounted for by the defendants but the remaining 140 bales were missing and not accounted for. The defendants subsequently recovered 23 out of these 140 bales. The learned Judge finch, and it is not disputed, that Damji Hirji and Co. s transactions were, towards the close of their business career, thoroughly fraudulent. The learned Judge remarks bales cannot be stolen and the only explanation given for the heavy loss of bales in Damji Hirj s charge is that he either with or without the connivance of his direct principal, the commission agent, sold a very large number of bales, falsified his accounts, and misappropriated the proceeds.