R.J.SHAH - (1.)Appellant a registered partnership firm having lost in the trial Court has come in appeal challenging the judgment and decree dated 30/06/1975 passed in Civil Suit No. 2321 of 1974 by the City Civil Court Ahmedabad Respondent-bank is the original defendant.
(2.)In order to appreciate the rival contentions a few facts will need to be stated. Appellant had opened a pledge account with the respondent. Pledged bales of cloth belonging to the appellant were kept in a godown which belonged to the appellant but which was under the direct control and supervision of the respondent pursuant to the pledge agreement between the parties. The said godown was therefore operated by .the respondent whenever needed in the presence of the agent of the appellant with the keys which remained in possession and safe custody of the respondent. On 17/04/1974 appellants agent went to take delivery of 2 bales along with the godown keeper of the respondent. It was then noticed that there were only 66 bales instead of 70 bales. As the appellant felt that the respondent was liable in respect of 4 missing bales a registered notice dated 25/04/1974 was served on the respondent calling upon them to return the 4 missing bales or alternatively Rs. 17 600 being the price of the bales together with the difference of price at the prevalent rate in other words; profit. 12 per cent per annum. According to the appellant the market price of the said bales at the relevant time was Rs. 211249.55. The total claim made in the suit inclusive of interest and notice charges was of Rs. 22 255.55 The suit was tried on merits and was ultimately dismissed with no order as to costs.
(3.)In the present appeal appellant contends in the first place that it was due to the negligence of the respondent-bailee that the said loss had occurred. It is an admitted position that the relationship between the appellant and the respondent was that of a bailor and a bailee. Respondent had examined one Keki Hormashji at Exhibit 50 at the trail. Since 1/10/1973 this witness was an officer in the Cash Credit Department in Maskati Market Branch of the respondent. This witness has described the procedure that was followed regarding operation of godown such as the one in question. In his cross-examination an attempt was made to show that there was scope for a godown keeper to play mischief. Regarding procedure this witness has stoutly maintained that the proper procedure was followed and due care was taken in parting with the keys of the godown for operation.