Delhi High Court
Rajinder Singh Bagga vs Harish Chander Chopra on 25 February, 1993
Equivalent citations: 50(1993)DLT224
JUDGMENT P.K. Bahri, J.
(1) This second appeal is directed against judgment and decree of Additional District Judge dated 7/11/1973 by which he had accepted the appeal and set aside the judgment and decree dated 28/04/1973 passed by Sub-Judge decreeing the suit of the appellant for recovery of Rs. 7,595.28 paise with costs.
(2) The appellant died during the pendency of the proceedings and his legal heirs namely Smt. Devinder Kaur Bagga and Smt. Virinder Kataria,were brought on record but later on one of the LRs has also died and her sole legal heir namely Smt. Virinder Kaur was already on the record and the name of deceased Devinder Kaur Bagga was struck out.
(3) Facts, in brief, are that the plaintiff, who was a timber merchant had supplied on hire centering material comprising of planks 6 brand new 400 in number on 2/07/1962 and another 400 on 21/07/1962 and pallu 8' each hundred in number on first date and 150 more on the second date. The planks were at the rental of Rs. 2.00 per diem while the pallus were at the rental of Rs. 1.50 per diem. On 12/12/1962, 230 planks and on 15/01/1963, 246 planks were returned to the plaintiff and similarly 120pallus on the first date and 100 pallus on the second date were returned leaving the balance with the respondent i.e. 324 planks and 30 pallus.
(4) It is the case of the plaintiff/appellant that Harish ChanderChopra, respondent/defendant had while taking the said material on hire represented that it was required for Joint Hindu Family firm of M/s. RajaRam Chopra & Sons of which his father was the Karta. The appellant/plaintiff filed a civil suit for recovery of Rs. 5,489.60 paise as hire charges for the period up to 22/02/1964 in which he imp leaded the said firm and the father and son as defendants. Ultimately, it was held in that suit by the Sub-Judge that in fact there existed no such firm and defendant namely.Harish Chander Chopra, had taken the said centering material on hire and he alone was liable for the hiring charges. It appears that in that suit also Harish Chander Chopra had taken the plea that the centering material had been lost. The Sub-Judge decreed the suit for the said amount on 29/05/1968 disbelieving the plea of the defendant that the said centering material had been lost.
(5) The appeal filed by defendant against that decree was dismissed by an Additional District Judge on 28/04/1969 with similar findings. It was mentioned in the judgment of the Additional District Judge that in casein any suit brought for future hiring charges a plea is taken by the defendant that the centering material given on hire had been lost, then the Court will decide that plea on its own merits.
(6) The present suit was brought for recovery of hiring charges again,mentioning that the hiring charge? are due w.e.f. 22/02/196 4/05/1969 amounting to Rs. 13.215.31 paise but claim was restricted tors. 7.595.28 paise which covered the hire charges for the last three years preceding the date of the filing of the suit.
(7) The respondent/defendant again took up the same pleas as he had raised while resisting the first suit which pleas were negatived against the respondent in the first suit and those findings operate as res-judicata, so the respondent/defendant cannot now take the plea that the centering material was not taken by him on hire. He has also taken the plea that the suit was barred by limitation but the suit was within time in respect of the hire charges for three years period preceding the filing of the suit.
(8) The plea was again taken by the respondent/defendant that the centering material bad been lost and thus suit for recovery of hire charges is not maintainable. The learned Sub-Judge again gave a finding on merit that respondent/defendant has failed to prove that the centering material supplied on hire had been lost. He held that the suit was within time andthe plea of the defendant that the material was supplied to the firm and the suit was not maintainable without joining the said firm as one of the defendants was not open to the defendant in view of the findings given in the previous case which operate as res judicata. He decreed the suit with costs.
(9) The first appellate Court, however, while affirming the findings on other issues came to the conclusion that the suit for recovery of hire charges was not maintainable inasmuch as the plea had been taken by the defendant that centering material had since been lost and thus, he. basing his judgment on the ratio laid down in the case of Dhian Singh Sobha Singh v.Union of India, held that plaintiff ought to have brought a suit for recovery of damages i.e. the market price of thecentering material supplied to the defendant. So, he allowed the appeal and set aside the judgment and decree of the lower Court.
(10) It is quite evident from the evidence which has been discussed by the first Court that the respondent/defendant had failed to prove that in fact the centering material bad been lost. I need not discuss that evidence again because that was a finding of fact which was not negatived even by the first appellate Court.
(11) The short question which arises for decision is that even if the defendant/respondent had failed to prove that the centering material supplied on hire had been lost, could in law it be urged that the hiring contract stood repudiated and thus the appellant/plaintiff was not entitled to recover the hire charges for the relevant period and he was legally bound to sue the defendant/respondent for recovery of the value of the goods ?
(12) In absence of any written contract between the parties specifying any particular period for which the material had been given on hire. the contract for hire would he deemed to have continued till it was repudiated by either of the parties. Tn anv oral contract of hire where terms are not settled as to the period for which the contract was to continue the hirer as well as the owner could intimate the intention to terminate the contract. On such termination taking place, the hirer is bound to return the hired material to the owner find on his failure to return such material, the owner would have remedies open to him of petting the damages for detention of the goods or getting the value of the poods. The position of a hirer becomes the position of a bailee on termination of a contract of hire. Under section 160 of the Indian Contract Act. 1872 it is the duty of the bailee to return or deliver according to the bailor's directions, the goods bailed, without demand, as soon as the time for which they were bailed has expired or the objects for which they were bailed had been accomplished. Section 161 stipulates thatif. by the default of the bailee. the goods are not returned, delivered or tendered at the proper time. he is responsible to the bailor for anv loss,destruction or deterioration of the goods from that time. But most important in the present case is the principle stated as follows by Pollock Wright in the book titled as "Possession in the Common Law" page 132 :
"ANY act or disposition which is wholly repugnant to or as it were an absolute disclaimer of the holding as bailee reverts the Tailor's right to possession and therefore also his immediate right to maintain trover or detinue......"
(13) In the present case, it is obvious that defendant's plea, although may not have been proved, that he had lost the goods which were supplied to him on hire would amount to repudiation of the contract of hire giving the cause of action to the appellant/plaintiff either to bring an action introvert or detinue. The action in trover would amount to claiming the value of the material supplied to the hirer. Action in detinue would amount to claiming usufruct or the charges of the material remaining in possession of the hire. These were the principles which were enunciated by the Supreme Court in the aforesaid case of Dhian Singh Sobha Singh (supra).
(14) In para50 of the judgment, it was laid down by the SupremeCourt that the disposition in law in regard to the measure of damages in an action for wrongful conversion is far from clear and the law in regard to the same cannot be said to be perfectly well-settled. But whatever be the position in regard to the same in actions for wrongful conversion, one thing is quite clear that in actions for wrongful detention the measure of damages can only be the value of the goods as at the date of the verdict or judgment. It was held that the tort is complete the moment the goods are wrongfully converted by the defendant and no question can arise in those cases of any continuing wrong. However, in case of a wrongful detention, the cause of action may certainly arise the moment there is a refusal by the defendant to redeliver the goods on demand made by the plaintiff in that behalf. It was further laid down that even though the cause of action thus arises on are fusal to re-deliver the said goods to the plaintiff the wrongful detention of the goods is a continuing wrong and the wrongful detention continues right up to the lime when the defendant re-delivers the goods either of his own volition or under compulsion of a decree of the Court. The Supreme further opined that this distinction between actions for wrongful conversion and those for wrongful detention that in the former the plaintiff abandons his title to the goods and claim damages from the defendant on the basis that the goods have been wrongfully converted by the defendant either to his own use or have been wrongfully dealt with by him. However, in the lattercase, the plaintiff asserts his title to the goods all the time and sues the defendant for specific delivery of the chattel or for re-delivery of the goods bailed to him on the basis that he has a title on those goods, it was held that the claim for re-delivery of the goods by the defendant to him is based on his title in those goods not only at the time when the action is filed but right up to the period when the same are re-delivered by the defendant tohim.
(15) I he Supreme Court lastly laid down that the wrongful detention thus being a tort which continues all the time until the re-delivery of the goods by the defendant to the plaintiff, the only verdict or judgment which the Court can give in actions for wrongful detention is that the defendant do deliver to the plaintiff the goods thus wrongfully detained by him or pay in the alternative the value thereof which can only be ascertained as on the date of verdict or judgment in favor of the plaintiff.
(16) It was also held by the Supreme Court that it is well settled that in an action for wrongful detention, the plaintiff is entitled, besides the redelivery of the chattel or the payment of its value in the alternative, to damages for such wrongful detention.
(17) SO. assuming for the sake of arguments that the hire contract stood repudiated by the defendant/respondent, even then the plaintiff/appellant was entitled to recovery of damages for wrongful detention of the goods by the respondent/defendant. Mere fact that the plaintiff had not in so many words claimed damages for wrongful detention of the goods does not mean that the hire charges which he was claiming should not be termed as damages for wrongful detention of the goods by the defendant/respondent.
(18) So, the appellate Court was not right in dismissing the suit of the plaintiff on the ground that plaintiff ought to have brought only a suit for recovery of the value of the goods and not claiming any hire charges.The claim of hire charges could be considered to be claim for damages for wrongful detention of the goods by the respondent/defendant. It may be that plaintiff may not be entitled to now bring a fresh suit for recovery of the value of the goods as the cause of action for seeking the value of the said goods had arisen to the plaintiff when the defendant/respondent had in the earlier suit taken the plea that the goods had been lost which would impliedly mean that the contract of hir stood terminated by the defendant.But the present suit for recovery of hire charges should not have been dismissed as the said suit was within limitation and plaintiff could demand the damages for wrongful detention of the goods by the defendant. The amount claimed as hire charges hence can be held to be due to the plaintiff from the defendant as damages for wrongful detention of the goods. The learned first appellate Court was thus not legally right in dismissing the suit.
(19) The repudiation of the hire contract took place when respondent defendant filed the written statement in 1966. This present suit is filed within three years, so the same is within time.
(20) I allow the appeal and set aside the judgment and decree of the first appellate Court and decree the suit for recovery of Rs. 7,595,28 paise with costs as was done by the lower Court. The appellant/plaintiff shall also be entitled to future interest @ 6% per annum from the date of filing of this appeal till realisation. The appellant shall be entitled to the cost of this appeal as well as the cost of first appellate Court.