Document Fragment View

Matching Fragments

4. Port Swettenham Authority v. T. W. Wu and Co. (M) SDN BHD, 1979 AC 580. it has been again held that where bailed goods were lost from the custody of the bailee (whether he was a gratuitous bailee or bailee for reward) the onus was on him to prove that the loss was not due to his failure to exercise the care required by law.

5. Union of India v. M/s. Udho Ram & Sons, AIR 1963 SC 422, it has been held that evidence should be offered by the bailee with respect to the extent of the precautions taken to protect the goods entrusted. It has been held that Section 151 of the Indian Contract Act, 1872, states that in all cases of bailment, the bailee is bound to take as much care of the goods bailed to him as a man of ordinaiy prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed. It was found that the railway administration had failed to exercise due care for protecting the goods of the bailor.

24. Having come to the conclusion that the judgment in Mohinder Singh Nanda's case is not per incurium, it has to be noticed that the aforesaid judgment pertains to the same incident in which 44 lockers were broken and the contents of the same were stolen. The judgment is, therefore, binding on this Court.

25. Mr. Ashok Pal Jagga, learned Counsel for the respondent-Bank, countering the arguments of Mr. Chhibbar. has argued that agreement between the parties constitute the relationship of landlord and tenant. The agreement uses the term "rent and hirer". A hiring agreement cannot be equated with the bailment. Furthermore, the agreement provides for a written notice to be given for termination of the agreement. This, according to Mr. Jagga, is in consonance with Section 106 of the Transfer of Property Act, which provides for giving a notice for termination of the tenancy. This argument of Mr. Jagga, is without any merit. I am of the considered opinion that hiring of a locker is a transaction wholly distinct in nature from a transaction that would create the relationship of landlord and tenant. In the case of tenancy exclusive possession of the demised premises has to be surrendered by the landlord to the tenant. In the case of bailment exclusive possession of the property has to be given by the bailor to the bailee. Whatever property is deposited in the locker is, undoubtedly, in the custody and possession of the bank. Merely because the locker can be operated only in the presence of the locker hirer would not amount to joint possession of the locker. The Banker can always open the locker with a "master key". The hirer of the locker is not in a position to open the locker without the assistance of the bank. The hirer has access to the locker only during specified banking hours. The banker has no such limitation. It must, however be noticed thai, the transaction of bailment would only be established if the provisions of Section 148 of the Indian Contract Act are complied with. With regard to this, it is the submission of Mr. Jagga that the plaintiffs have miserably failed to prove that the jewellery was kept in the locker as claimed in the plaint. There being no entrustment or delivery of possession. Section 148 of the Act cannot be invoked by the plaintiffs. I find substance in this submission of the learned Counsel. The plaintiffs have failed to make out a case of bailment, in accordance with Section 148 of the Indian Contract Act. which provides the conditions precedent for constituting bailment. These are : (1) There has to be delivery of goods by bailor to bailee; (ii) There has to be a contract to return the goods or the property on the instructions of the bailor. The explanation to Section 148 of the Indian Contract Act, 1872, shows that possession by itself is not enough. Section 149 of the Act envisages that delivery may be made by doing anything which has the effect of putting the goods in the possession of the bailee. As observed in the earlier part of this judgment, there is no evidence on the record except the bald statement of plaintiff No. 2 and the list Annexure-A, to prove that the jewellery was kept in the locker at the time when the robbery took place. Thus, the learned Courts below have correctly held that the plaintiffs have failed to prove entrustment of the jewellery to the Bank. In the case of Kaliaperuman Pillai v. Visalakshmi Achi, AIR 1938 Mad 32, considering the provisions contained in Sections 148 and 149 of the Indian Contract Act, 1872, it has been held as follows (at Pages 32-33) :--

26. These observations seem to be fully applicable to the facts and circumstances, of this case. There is no evidence whatsoever to suggest that the jewellery was ever deposited in the locker. Furthermore, there is no evidence to prove that the value of the jewellery was as claimed by the plaintiffs. Section 151 of the Act provides for the degree of care to be taken by the bailee of the goods bailed. In all cases, of bailment the 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. No liability can be fastened on the bailee when the goods are returned in a condition similar to the condition of the goods at the time of deposit. In any event, Section 152 of the Indian Contract Act. 1872, provides, that the bailee, in the absence of any special contract, is not responsible for the loss, destruction or deterioration of the thing bailed, if he has taken the amount of care of it described in Section 151. In these observations of mine, I am fortified by the observations made by a Division Bench of the Allahabad High Court in. the case of Shanti Lal v. Tara Chand Madan Gopal, AIR 1933 All 158, Considering the provisions, of Sections 151 and 152 of the Indian Contract Act, 1872, it has been observed as under (at Page 159) :--

"The standard of diligence required of a bailee under Sections 151 and 152. Contract Act, is that of the average prudent man; and where the bailee has laken the same care of the property entrusted to him as a reasonably careful man may be expected to take of his own goods of the same bulk, quality and volume as the goods bailed, he is not responsible for the loss, destruction or deterioration of the thing bailed. No cast-iron. standard can be laid down for the measure of the care due from him and the nature and amount of care must vary with the posture of each case. The Courts below have arrived at a definite finding that in view of the peculiar circumstances of this case, the bailee has not been remiss in his obligations to his principal and has not been negligent in the care of the goods bailed to him, The position of the bailee in this case was one of supreme difficulty. The appearance of a flood was unknown and unprecedented in the annals of Agra. The factors and godown keepers had no past experience to guide them. It could not be predicted with certainty that the river would rise in flood. No forecast could be made of the time of its advent. The plaintiff may well have thought that if the river rose in flood it may not reach the area where his godown stood. The removal of the goods to some other locality was perhaps out of the question. For who could say that the flood would come so far and no further? We are clearly of opinion that the plaintiff was not guilty of negligence in the discharge of his statutory liability to his principals with reference to the goods entrusted to him, that he was not responsible for the loss, destruction or deterioration of the thing bailed and that he was justified in claiming the price thereof from the defendants."