Supreme Court: Appeal was filed by the appellant against the decree dated 30-03-1949, passed by the Bombay High Court (‘the High Court’). Appellant sought compensation from the respondent-bailee for the loss and destruction through negligence of goods bailed. The three-judges Bench of M.C. Mahajan, Vivian Bose* and B. Jagannadhadas, JJ., opined that it was evident from these that respondent knew from the start that drums of acetic acid require special care in storing. Further, it was admitted fact the drums were left where they were without any further precautions and appellant was not even informed because respondent’s witness stated that he did not consider it either necessary “or advisable” to do so.
The Supreme Court opined that it was clear that no man of ordinary prudence would have behaved like this with his own goods. Further, if the case was the other way round, of course the respondent would not have behaved like this and left the goods to rot while the parties settled the question of title. Therefore, respondent’s negligence was clear on the face of it. Thus, the Court set aside the decree passed by the High Court and restored the Trial Court’s decree.
Background
In the present case, the suit as originally framed was for the price of eighty-two drums of acetic acid which appellant stated he had sold to respondent. Respondent admitted receipt of the goods but denied that it had purchased them. Respondent contended that the goods were bailed, and that appellant was responsible for their destruction, and further put in a counterclaim for rent up to the date of its claim, and even beyond, asserting thereby that the bailment was still in being. Respondent also claimed a certain sum which the Bombay Port Trust demanded from respondent as fine on the ground that the goods were stored on Port Trust property. After this, appellant sought leave to amend his plaint and, in the alternative, sought compensation from respondent. Since, respondent did not oppose, appellant was permitted to amend the plaint. During trial, appellant abandoned his original case and confined himself to the alternative claim.
It was stated that respondent undertook to store the drums in its godown and made an express stipulation that the drums should be in sound condition and properly packed and drew attention to the danger of faulty packing in the case of goods of this nature. However, respondent stored the goods in a place which was stored by a third party. Further, when respondent’s men went to remove the drums, or samples of them for the auction, they discovered that seventy of the eighty-two drums were on the verge of bursting and might burst any day. This discovery was made on 1st September and appellants were not told until 4th September.
The Trial Court decided in favour of appellant, whereas the High Court decided against appellant. Thus, appellant filed the present appeal. The Supreme Court confined its attention to appellant’s rights as bailor and respondent’s rights and liabilities as bailee.
Analysis, Law, and Decision
The Supreme Court opined that because of concurrent findings and conduct of parties, it must be accepted that the drums were in sound condition and properly packed when they were delivered into the respondent’s custody on 28-11-1947. It was also beyond dispute that because of the action of sun, wind and weather, aided by the monsoon, seventy-eight of the eighty-two drums became useless by 4-10-1948. The only question was whether respondent had in this interval exercised the standard of care laid upon bailees by Section 151 of the Contract Act, 1872.
The Supreme Court opined that on the question of negligence it was not necessary to go beyond the respondent’s witnesses and letters. It was evident from these that respondent knew from the start that drums of acetic acid require special care in storing. The Supreme Court noted that respondent’s witness expressly told the Chairman of the defendant’s Board of Directors before the goods were received, that acid in drums was dangerous to store. It was also stated in the respondent’s letter that the drums should be “absolutely in sound packing and not leaking anywhere”. Respondent also stated that the drums were made of wood and required protection against the rain. The Supreme Court opined that it was evident from this that storage on damp ground would be negligent storing, particularly in the rains.
The Supreme Court opined that it was admitted fact the drums were left where they were without any further precautions and appellant was not even informed because respondent’s witness stated that he did not consider it either necessary “or advisable” to do so. The Supreme Court opined that the High Court considered that respondent had discharged its duty when it informed appellant on 06-01-1948, that instead of storing the goods in its godown it had stored them in the curtilage of the godown. However, that was not enough. The Supreme Court opined that given proper protection as, for example, placing the drums on raised platforms so that the wet from the ground could not reach them, with temporary roof on top to carry off the water, storage in the curtilage would probably have been quite safe.
Therefore, even if appellant’s assented to this change of storage of the goods in curtilage of the godown instead of godown, it did not help respondent because appellant would be entitled to assume that the respondent as bailee would take redoubled precautions when storing the goods outside the godown, especially as respondent knew that they were liable to rapid and dangerous deterioration. The Supreme Court opined that it was clear that no man of ordinary prudence would have behaved like this with his own goods. Further, if the case was the other way round, of course the respondent would not have behaved like this and left the goods to rot while the parties settled the question of title. Therefore, respondent’s negligence was clear on the face of it.
Thus, the Court set aside the decree passed by the High Court and restored the Trial Court’s decree.
[Dayalji Girdhar v. Gannon Dunkerley & Co. Ltd., (1953) 1 SCC 446, decided on 18-03-1953]
Note: Section 151 of Contract Act, 1872
Bailment is a term which denotes delivery of goods or personal property by one person to another, but the ownership remains unchanged. Bailee is entrusted with several duties, and foremost is that he must take care of the goods bailed reasonably. Section 151 of the Contract Act, 1872 specifies the care the bailee would take. It states that in all cases of bailment, bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed.
*Judgment authored by- Justice Vivian Bose
Advocates who appeared in this case :
For the Appellant: C.K. Daphtary, Solicitor General of India (J.B. Dadachanji, Advocate, with him);
For the Respondent: C.R Pattabhiraman and R. Ganpathy Iyer, Advocates.
