- (1.) THE plaintiff is the appellant in a suit for a sum of Rs 12,700/- on account of the price of a motor truck chassis valued at Rs 12,700/ -. The case of the plaintiff is that the plaintiff carried on business in the name of Everest Motor Company and the defendants purchased the aforesaid chassis on 3rd April 1954, the price of which was agreed to be paid by a draft drawn on the Siliguri Sub-Treasury on the 6th April, 1954. It is further the case of the plaintiff that after taking delivery of the said chassis the Chairman and the Vice-Chairman of the Municipality requested the plaintiff to make it over to a body builder named Nani Gopal Roy and Nani Gopal Roy agreed to build the body at a cost of Rs. 500/ -. The said chassis, under the circumstances, was left by the Chairman and the Vice Chairman of the Municipality at the plaintiff's place for the purpose of getting the body built by the said Nani Gopal Roy entirely at their own risk and that on the 4th April, 1954 there was an accidental fire and the chassis was burnt. The plaintiff had no control nor any responsibility for the said fire. The plaintiff, however, took all precautions and did everything possible, but the chassis was completely burnt. Thereafter, the defendants, the Municipality refused to pay and this suit was instituted after giving proper notice in accordance with law.
(2.) THE defence was that the plaintiff got certain blank forms signed by the Chairman and the Vice-Chairman stating that it was a formal matter it was lever agreed that the chassis would be sold or delivered separately from the body of the truck as suggested by the plaintiff. The allegation that the Chairman and the vice-Chairman took delivery having granted due receipt was denied. As an alternative case the defendants stated that the plaintiff company was a bailee of the disputed vehicle intended to be sold and the vehicle having been destroyed by fire due to the plaintiff's or his employees' negligence while in their charge and custody, the claim for price was not maintainable and the claim of the plaintiff was liable to be set off under the rule of equitable set off. The loss caused by the destruction of the vehicle by the plaintiff's negligence was stated to be Rs. 13,000/ -. A further case of the defendants was that the alleged contract of sale was vitiated because of section 103 (2) of the Bengal Municipal Act and, therefore, void and not enforceable against the defendants. After that, the issues were framed and the suit was heard. The trial court found that it could not hold that the plaintiff took the signatures of defendants 3 and 3 in some blank papers or documents. It further found that the Chairman of the Kalimpong Municipality did not make over the chassis to the body builder nor he authorised the body builder to take delivery of the chassis from the plaintiff. He left Siliguri keeping the chassis under the care and custody of the plaintiff. The trial court further found that because of section 103 (2) of the Bengal Municipal Act there was no enforceable contract as against the defendant Municipality. The plaint was amended by adding defendants 2 and 3 to the suit ; the plaintiff claimed the value from the defendants 2 and 3 personally in the alternative. The trial court overruled that, because the plaintiff knew full well that the purchase was made on behalf of the Municipality and the purchase was really intended to be made on behalf of the said Municipality. The court further held that the provisions of section 65 of the Indian Contract Act were not attracted to the facts of the present case. That, we think, would ordinarily make an end of the case ; according to the court below, the contract was not enforceable against the Municipality ; the principle of restitution as laid down in section 65 of the Contract Act should not be attracted. No question was urged in the court below as to whether the plaintiff would be entitled to the same money on account of section 70 of the Indian Contract Act. The result would, therefore, naturally be that the defendant would not be liable at all. But the court went into the consideration of the question as to whether the plaintiff would be debarred from claiming the money on the ground that he kept the chassis as a bailee and fire by which it was destroyed was due to the carelessness of his servants and the agents. The court found that the plaintiff as a bailee did not take proper care and the contention of the defendant that there was carelessness on the part of the plaintiff could not be brushed aside and on that view of the matter, the defendants could ask exemption from payment of the price of the chassis as the same should be set off against the loss suffered by them on account of fire due to the negligence of the plaintiff. The result was that the suit was dismissed with costs. The plaintiff has preferred an appeal against that judgment and decree.
(3.) MR. Bakshi on behalf of the plaintiff urged that the court below was wrong in holding that the contract was bad because of section 103 (2) of the Bengal Municipal Act. According to Mr. Bakshi, the contract cannot be said to be void-the price for the chassis could be recovered from the Municipality ; the court in any case should have granted a decree against the defendants 2 and 3. Mr. Bakshi suggested that in the circumstances of the case the sale was complete, because delivery was given to the Chairman and the Vice-Chairman. Therefore, the provisions of section 103 have been substantially complied with and, therefore, the court should have granted a decree against the Municipality. Mr. Bakshi next said that the court found that section 65 of the Contract Act would not apply. The reason was that in the circumstances of the case no material advantage was received by the Kalimpong Municipality. Mr. Bakshi asked what more could a seller do, than deliver the goods to the purchaser ? The goods were delivered and nothing more was expected to be done by the seller. Therefor, the provision of section 65 does apply. Even if section 65 of the Contract Act does not apply, section 70 of the Indian Contract Act does apply. Mr. Bakshi urges that the court should have granted a decree for the money ; for, the seller did all that he could do to put the buyer in possession. If the buyer after taking possession of the goods delivered, kept them with the plaintiff, it could not be said that it was no delivery to the buyer. The next argument of Mr. Bakshi is that, as the goods were delivered, the plaintiff is entitled to the price even if the motor vehicle was kept in the custody of the plaintiff for the purpose that Nani Gopal Roy might build the body. Mr. Bakshi said that he has taken all reasonable care that a prudent man would take of a workshop. He says that the plaintiff's own cars were there and they were burnt. Mr. Bakshi further says if any body was responsible, it was the defendants who were responsible. They knew and saw what type of garage he had. The Chairman and the Vice-Chairman came to Siliguri and saw the workshop ; it was thatched built with wooden walls and partly of wooden floor. They found other cars, presumably with petrol, there ; they must have also known that, as it was a workshop and the repair work was being done, oxygen cylinders would naturally be there. If, after knowing all these things, they had deliberately placed their new motor truck without insuring it in the aforesaid premises of the plaintiff, the defendants will suffer, because the defendants with their eyes wide open took the risk of keeping the newly purchased motor truck which had not till then been insured in the workshop. Mr. Bakshi, therefore, says he has absolutely no liability for the fire. Mr. Hari Prasanna Mukherjee on behalf of the defendants challenged rather feebly the finding arrived at by the court below that the plaintiff took the signatures of the defendants 2 and 3 in some blank papers or documents. It is urged by Mr. Mukherjee that the plaintiff cannot under any circumstances avoid section 103 of the Municipal Act as the contract of sale was not in writing and not signed by at least two of the Commissioners, one of whom should have been the Chairman or the Vice-chairman and as the contract of sale was not sealed with common seal of the Commissioners, the contract is not enforceable in law either against the Municipality, the defendant No. 1 nor against the defendants 2 and 3. The finding that the defendants 2 and 3 never entered into the contract on their own behalf and the plaintiff knew full well that the defendants 2 and 3 never entered into a contract on their own behalf is a proper finding of the court below. With regard to section 65 of the Indian Contract Act, Mr. Mukherjee strongly urges that the agreement of sale was never "discovered to be void" and this "contract never became void". Further, no material advantage was at all received. Mr. Mukherjee submits that section 65 does not apply on the aforesaid two reasons. He further goes on to say that section 70 does not also apply, because that section speaks of something more than mere advantage. It must be some benefit and the defendants got no benefit whatsoever of the motor truck which was completely burnt down before any benefit could accrue to the Municipality of Kalimpong. Mr. Mukherjee, therefore, urges that neither section 65 nor section 70 is attracted. But even if the plaintiff is entitled to the benefit of either section 65 or of section 70 of the Contract Act, the truck was kept in the custody of the plaintiff. The plaintiff was a bailee and the plaintiff would, therefore, be liable to take reasonable care within the meaning of section 151 and section 152 of the Indian Contract Act. The clear finding of the court below is that the plaintiff did not take such care. This finding is a proper finding and there is no reason why that finding should be reversed. Mr. Mukherjee, therefore, submits that the suit was properly dismissed in the court below.;